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In Hope v. Goines, No. 00 CV 3476 (JG), 2002 WL 2003201 (E.D.N.Y. Aug. 8, 2002), the Court considered a parolee's illegal search claim in which he alleged that on a routine visit to his parole officer, other parole officers, who were not assigned to him, conducted a search on his person, resulting in the recovery of a razor blade.
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00 CV 3476 (JG)
August 8, 2002
EUGENE B. NATHANSON, New York, New York, Attorney for Plaintiff.
ELIOT SPITZER, Attorney General of the State of New York, New York, N.Y. By: Michael E. Peeples, Assistant Attorney General, Attorney for Defendants.
MEMORANDUM AND ORDER
Plaintiff Chesterfield Hope brings this civil rights action pursuant to 42 U.S.C. § 1983 against the defendant parole officers, alleging that they conducted an illegal search of his person during a parole office visit. Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, the defendants' motion is granted.
Facts
On November 13, 1997, Hope was released from prison to the New York State Division of Parole. As a condition of his release, Hope signed a "certificate of release," which set forth the terms and conditions of his parole and recorded his consent to these conditions. One passage of the certificate stated as follows:
I, Chesterfield Hope, voluntarily accept Parole supervision. I fully understand that my person, residence and property are subject to search and inspection. I understand that parole supervision is defined by these Conditions of Release and all other conditions that may be imposed upon me by the [Parole] Board or its representatives.
Defendants' Statement of Material Facts, ¶ 3. The certificate listed as conditions, inter alia, that (1) "I will permit my Parole Officer to visit me at my residence and/or place of employment and I will permit the search and inspection of my person, residence and property," and (2) "I will not own, possess or purchase any deadly weapon as defined in the Penal Law or any dangerous knife, dirk, razor, stiletto, or imitation pistol." Id. Hope was placed under the supervision of defendant Parole Officer Phyhis Goines, and was required to make regular office visits to the Division's offices at 340 Livingston Street in Brooklyn.
"Dirk" is an archaic word of Scottish origin meaning "a long, straight-bladed dagger." Webster's Ninth New Collegiate Dictionary 358 (1984).
On June 14, 1999, Hope reported to those offices for a regularly scheduled meeting with Parole Officer Goines. That day happened to be a "safety check day." Pursuant to Parole Division practice since the early 1990s, on a safety check day every parolee is searched as he or she reports to the office. These searches involve a "pat down" and a search of a parolee's pockets and bags.
Hope was directed to a room where unidentified parole officers patted him down and searched him. During the search, a razor blade was discovered in Hope's knapsack. Goines was notified of the search and its results, and she determined that carrying a razor blade violated a condition of Hope's parole. She issued a parole violation warrant, and Hope was arrested and incarcerated. On November 12, 1999, Hope was released from prison and his parole violation was dismissed pursuant to a writ of habeas corpus issued by the New York State Supreme Court.
Hope commenced this action on June 6, 2000, alleging that defendants violated his Fourth Amendment rights by subjecting him to an illegal search. At first, Hope alleged that he was searched selectively, claiming that a parole officer approached him on the street in front of the parole office, ascertained that he was a parolee, and ordered him inside to be searched. He has since withdrawn that allegation, and now contends only that the safety check day practice-the-pat-down of all parolees and the search of their pockets and bags — violates the Fourth Amendment. He seeks compensatory and punitive damages.
While the instant motion was pending, plaintiff consented to the dismissal of Phyhis Goines and Bill McCarthy. I dismissed them in an order dated April 4, 2002. At oral argument, plaintiffs counsel informed me that defendant Frank Cuccinelo was never served and thus is not before the court.
Discussion
A. The Summary Judgment Standard
Under Rule 56 of the Federal Rules of Civil Procedure, the moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law governing the case identifies the facts that are material, and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 248 (1986). Summary judgment is warranted only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party." Id.
Moreover, "the inferences to be drawn from the underlying facts.., must be viewed in the light most favorable to the party opposing the motion." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts. . . . [T]he non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.'" Id. at 586-87 (quoting Fed.R.Civ.P. 56(e)).
B. The Alleged Fourth Amendment Violation
In order to prevail, a plaintiff in a § 1983 action must prove: (1) a deprivation of a federally protected right; and (2) that the deprivation occurred under color of state law. See American Mfgs. Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Pitchell v. Callan. 13 F.3d 545, 547 (2d Cir. 1994). Only the first of these elements is at issue here.
Hope alleges a violation of his Fourth Amendment right to be free of unreasonable searches. Since the Supreme Court has said that the Fourth Amendment protects only against "unreasonable government intrusions into.., legitimate expectations of privacy," United States v. Chadwick, 433 U.S. 1, 7 (1977), I must examine both the reasonableness of the search and Hope's expectations of privacy.
1. The Reasonableness of the Search
The reasonableness of a search is determined by balancing the degree of the intrusion upon an individual's privacy against "the degree to which it is needed for the promotion of legitimate governmental interests." Wyoming v. Houghton, 526 U.S. 295, 300 (1999).
As to the degree of intrusion, the evidence is undisputed that the searches in question consist of "pat downs" and searches of bags and baggage. A pat down, or frisk, involves touching the body, and thus is more invasive than some other search measures, such as metal detectors or drug-sniffing dogs. At the same time, the state may choose not to spend limited public resources on purchasing, maintaining, and operating technologically advanced equipment like metal detectors; absent such an investment, pat frisks are likely the least intrusive means of detecting weapons or drugs in this context. The Supreme Court has "repeatedly refused to declare that only the 'least intrusive' search practicable can be reasonable under the Fourth Amendment." Veronia School Dist. 47J v. Acton, 515 U.S. 646, 663 (1995) (quoting Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 629 n. 9 (1989)). On balance, I conclude that the intrusiveness of the search here is relatively minor, and must be weighed against other factors.
Plaintiff relies on New York v. Huntley, 43 N.Y.2d 175, 181 (1977), for the proposition that a parolee is not stripped of all Fourth Amendment rights. See id. at 180-81. As plaintiff concedes, however, parolees possess diminished Fourth Amendment protections, and the precise scope of the protections they retain is uncertain. New York considers parolees to be still serving their prison sentences, only outside of jail. See, e.g., Menechino v. Division of Parole, 301 N.Y.S.2d 350, 352 (1st Dep't 1969), aff'd 26 N.Y.2d 837 (1970) ("While on parole, the petitioner remained constructively in legal custody subject at all times to the control of the Board of Parole."). This conception does not mean that parolees have only the de minimis Fourth Amendment protection that incarcerated inmates retain, but it explains (and justifies) a significant limitation on parolees' rights. Even as the New York Court of Appeals affirmed the rights of parolees in Huntley, it held that a Fourth Amendment plaintiffs status as a parolee "is always relevant and may be critical," because "what may be unreasonable with respect to an individual who is not on parole may be reasonable with respect to one who is." Huntley, 43 N.Y.2d at 181. Similarly, the federal courts, like the state courts, have consistently found that parolees possess a reduced level of Fourth Amendment protection, see United States ex rel. Santos v. New York State Board of Parole, 441 F.2d 1216, 1218 (2d Cir. 1971) (what is unreasonable for a person not on parole may be reasonable for a parolee), and have linked the reasonableness of those searches to the needs of parole supervision. See Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (parole creates "special needs" which justify departure from normal standards). The similarity between federal and New York law extends to the test for determining the validity of a search of a parolee. In Huntley, the New York Court of Appeals stated the test as "whether the conduct of the parole officer was reasonably and rationally related to the performance of the parole officer's duty." Huntley, 43 N.Y.2d at 181. The Second Circuit has held that such searches are justified as long as they are "'reasonably related to the performance of the parole officer's duty.'" United States v. Grimes, 225 F.3d 254, 258 (2d Cir. 2000) (quoting Huntley, 43 N.Y.2d at 181).
(a) The Legal Principles Governing Searches in the Absence of Individualized Suspicion
The Court has explained that there is a "longstanding principle that neither a warrant, nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance." Nat'l Treasury Employee's Union v. Van Raab, 489 U.S. 656, 664 (1989). Rather, the "ultimate measure of the constitutionality of a government search is 'reasonableness,'" Veronia School Dist. 47J, 515 U.S. at 652, and courts have generally engaged in a fact-specific inquiry to determine whether suspicionless searches are permissible. See City of Indianapolis Edmond, 531 U.S. 32, 37-40 (2000) (citing cases).
In United States v. Martinez-Fuerte, 428 U.S. 543 (1976), the Court upheld a checkpoint search designed to discover illegal immigrants traveling on a major highway in California. It reasoned that the government had a legitimate interest in controlling illegal immigration. Since the burden of requiring individualized suspicion for each stop would be too great, the "special need" of controlling the nation's borders was sufficient to place the search outside of the usual requirement of individualized suspicion. Id. at 562. Since then, the Court has upheld other "special needs" searches, See, e.g., Veronia School Dist. 47J, 515 U.S. at 664-65 (random drug tests for student-athletes); Treasury Employees v. Von Raab, 489 U.S. 656 (1989) (drug tests for Federal Customs Service employees seeking transfer to certain positions), as well as suspicionless "administrative searches" for particular regulatory purposes, See, e.g, New York v. Burger, 482 U.S. 691, 708-12 (1987) (inspection of automobile junkyard, a "closely regulated business"); Michigan v. Tyler, 436 U.S. 399, 507-12 (1978) (suspicionless inspection of fire-damaged buildings). I note that during the pendency of this motion, the Court issued its most recent opinion on the subject, reaffirming the validity of the "special needs" exception and expanding its reach in the school drug-testing context. See Board of Ed. of Ind. School Dist. No. 92 of Pottawatomie v. Earls, No. 01-332, slip op. at 5, (U.S. Sup.Ct. June 27, 2002).
Skinner v. Railway Labor Executives' Association, 489 U.S. 602 (1989), is particularly instructive. In that case, the Court upheld regulations mandating drug and alcohol testing of all railroad employees involved in serious accidents on the job. According to the regulations at issue, after certain railroad accidents the railroad was required to transport all covered employees to an independent medical facility, where blood and urine samples would be taken and tested for the presence of alcohol or illegal drugs. See id. at 609-10. The Court held that these searches were constitutionally permissible because of the Government's compelling interest in regulating the safety of the railroads see id at 628-30, and the difficulty of protecting that interest if the railroad were required to make an individualized showing of suspicion to justify such seizures whenever there had been an accident. See id. at 631. The Court wrote:
The Government's interest in regulating the conduct of railroad employees to ensure safety, like its supervision of probationers or regulated industries, or its operation of a government office, school, or prison, "likewise presents 'special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements."
Skinner, 498 U.S. at 620 (quoting Griffin, 483 U.S. at 873-74) (emphasis added).
(b) The Application of These Principles to the "Safety Check Day" I conclude that the facts of this case fit easily into the exceptions to the individualized suspicion requirement that are outlined in Edmond. Unlike the search challenged in Edmond, the persons affected by search at issue here were not members of the general public on a public road, but rather parolees in a parole office. The intrusion therefore falls only on a readily identified subset of the population that undisputably possesses reduced Fourth Amendment protections, and occurs in a location in which the government's interest is especially strong. Moreover, the Court noted in Edmond that the explicit and sole purpose of the roadblock in question was to uncover evidence of ordinary criminal activity. See id. at 41-42. The parolee search, however, is not a general crime control measure. Rather, it furthers the specific goals of New York's parole program, which include the need to (1) ensure compliance with terms and conditions of parole; (2) protect parole officers, staff, other parolees, and the public; and (3) facilitate re-integration into the community by discouraging illegal behavior.
As in Skinner, the government search at issue here was conducted pursuant to a broad policy that is no more invasive than necessary to achieve the desired goal. In both cases, those subjected to the blanket search were not random members of the general public, but rather an identifiable group that had been put on notice that a search is possible. Finally, in Skinner, only employees working on trains that were recently involved in significant accidents were subject to search. Although those searches occurred without individualized suspicion, the government nonetheless had reason to believe, based on prior experience, that employees involved in accidents were disproportionately likely to have been under the influence of alcohol or illegal drugs. See Skinner, 489 U.S. at 607-08. Similarly, the Probation Department searches only individuals who have been convicted of felonies, and the search policy was implemented after weapons were found in the probation offices. See Defendants' Statement of Undisputed Facts, ¶¶ 11-15.
(c) Defendants' Proffered Reasons
Defendants seek to justify the searches in question by reference to the goals of the parole program, which are described above. As factual support for the connection between the policy and these proffered reasons, they offer evidence in the form of deposition testimony and affidavits attesting to the following facts: (1) 250-350 parolees report to parole offices in Brooklyn on a reporting day; (2) the average parole officer has between 50-60 parolees to monitor at any given time; (3) many of the parolees supervised in Brooklyn have been convicted of violent crimes; (4) weapons and illegal drugs have been found in parole offices in circumstances that lead inescapably to the conclusion that they were discarded by parolees who feared that they would be found in possession of them; and (5) arguments and fights have broken out between parolees inside parole offices.
Plaintiff does not dispute these facts. See Plaintiffs Counter-Statement of Undisputed Facts. Nor does he claim that they would not provide factual support for a search policy like the one he challenges, implemented for the reasons proffered by the defendants. Rather, plaintiff argues that the defendants in fact had other (presumably law enforcement) purposes in mind when they implemented the search policy, and that summary judgment is inappropriate here because there is a factual dispute about to the true purpose of the policy. I am not persuaded by this argument.
Plaintiff implies that Edmond, supra, requires defendants to prove that the primary purpose of the search policy was the protection of others within the parole offices. See Plaintiffs Memorandum in Opposition, at 4 ("Defendants . . . have hardly established as a matter of undisputed fact that this is even a true purpose . . . let alone a primary purpose, as required by Edmond.") (hereinafter "Pl.'s Mem."). This contention is a misreading of Edmond. Edmond does not require the defendants to prove that an asserted purpose is the primary purpose. Instead, it holds that a reviewing court may "examine the available evidence to determine the primary purpose," and where a court finds that the primary purpose was impermissible, it may find the search unconstitutional on that basis. Edmond, 531 U.S. at 46-47. In Edmond, the parties had stipulated in the district court that general law enforcement was the primary purpose of the checkpoint. See Edmond v. Goldsmith, 38 F. Supp.2d 1016, 1018 (S.D. Ind. 1998), rev'd 183 F.3d 659 (7th Cir. 1999), aff'd sub nom. City of Indianapolis v. Edmond, 531 U.S. 32 (2000). The discussion of purpose in the majority opinion in Edmond was in response to Chief Justice Rehnquist's dissenting opinion, which argued that courts should not take the purpose of a generalized search into account. See Edmond, 531 U.S. at 52-53 (Rehnquist, C.J., dissenting). Plaintiff is attempting to import a burden-shifting mechanism where none exists; it is he who has the burden of proving that defendants' purpose was an illegitimate one.
As to the facts, plaintiffs counsel conceded at oral argument that he offered no additional evidence of defendants' purpose, but instead would attempt to raise an inference in the minds of the jurors that the reasons offered were not sincere. Plaintiff implies that if the safety of other persons in the parole offices were truly a matter of concern, defendants would be able to testify to more incidents of violence in the offices. See Pl.'s Mem. at 4-5. But public officials have an affirmative duty to ensure the safety of public employees, members of the public, and the parolees themselves. They know that convicted felons have been bringing weapons and illegal drugs into the parole offices. They are not required to wait until someone is killed in their offices before they act to prevent such an act.
Finally, plaintiff relies on an excerpt from the Division of Parole's Policy and Procedures Manual to suggest that the Division itself recognizes the requirement of individualized suspicion before any search of a parolee. See Pl.'s Mem. at 6. This reliance is misplaced. The manual does not address the question of whether an individualized suspicion is required before a parolee may be searched in a parole office. See February 28, 2002, Sworn Statement of Eugene B. Nathanson, Exhibit I ("[A] releasee may be searched when there is an articulable reason relative to the responsible supervision of the case"). As plaintiff acknowledges, an "articulable reason" is not the same thing as an "individualized suspicion." Pl.'s Mem. at 7. Neither does the language of the manual support plaintiffs interpretation that this passage establishes the only circumstances in which a parolee may be permissibly searched. Even if it did, it would not be binding as law. See Hall v. New York State Div. of Parole, No. 99-11317, 2000 U.S. Dist. LEXIS 11027, at *10 (S.D.N.Y. July 13, 2000) (parole manual provision cannot be enforced through litigation); People ex rel. Allah v. New York State Board of Parole, 551 N.Y.S.2d 16, 17 (1st Dep't 1990)("policy item does not have the force of law, and therefore is not properly enforceable by this court"). Therefore, the manual sheds little light on the questions raised by this motion.
On these facts, I conclude that the search policy is reasonably related to the performance of the duties of the parole officers. I further conclude that the policy furthers "special needs" that go beyond ordinary law enforcement, is reasonably related to the performance of a parole officer's duties, and has not been adopted for the purpose of general crime control.
2. Hope's Reasonable Expectation of Privacy
To establish a legitimate expectation of privacy, Hope must show (1) that he held an actual [subjective] expectation of privacy," and (2) this expectation is "one that society is prepared to recognize as 'reasonable.'" Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
Hope cannot satisfy either prong of this test. He cannot establish a subjective expectation of privacy, as he acknowledged in writing his understanding of the conditions of his release, which explicitly included being subject to searches by his parole officer. As to the second prong, Hope's legally cognizable expectation of privacy was greatly reduced. As the Second Circuit has stated in a similar case, "[t]he expectation of a parolee in a parole officer's office would be at its lowest ebb." United States v. Thomas, 729 F.2d 120, 123-24 (2d Cir. 1984).
Considering both the reasonableness of the search and plaintiffs lack of a legitimate expectation of privacy, I conclude that there are no material facts in dispute and defendants are entitled to summary judgment as a matter of law.
C. Qualified Immunity
Government officers are entitled to qualified immunity if their "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether a particular right was clearly established at the time defendants acted, the Second Circuit "has considered three factors: (1) whether the right in question was defined with "reasonable specificity"; (2) whether the decisional law of the Supreme Court and the [Second Circuit] support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful." Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991) (citing Francis v. Coughlin, 891 F.2d 43, 46 (2d Cir. 1989)), cert. denied, 503 U.S. 962 (1992). Also, even where the law is clearly established, officers are entitled to qualified immunity if it was "objectively reasonable" for them to believe that their actions were lawful at the time of the challenged acts. See Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir. 1993).
The right asserted by Goines here, the right of a parolee reporting to his parole office to be free from search absent individualized suspicion, has not been clearly established by the decisional law of the Supreme Court or of the Second Circuit. Furthermore, since I find that the search policy is constitutional, I also find that it was objectively reasonable for defendants to believe that their actions were constitutional. Accordingly, on either basis defendants are entitled to qualified immunity. This conclusion provides an alternate ground for granting summary judgment.
The law of a specific circuit can clearly establish a right, but the Supreme Court has not decided whether a right may be "clearly established" by decisions of other circuit courts. See Harlow v. Fitzgerald, 457 U.S. 800, 818 n. 32 (citing Procunier v. Navarette, 434 U.S. 555, 565 (1978)); Poe v. Leonard, 282 F.3d 123, 141 n. 15 (2d Cir. 2002) (noting that Second Circuit precedent unclear as to whether decisions of other circuits can establish right and collecting cases). In this instance, no other circuit has decided this question either, so I need not decide whether such a decision could be the basis to defeat a qualified immunity claim.
Conclusion
Plaintiffs counsel suggested at oral argument that if the Parole Divisions's safety check day were permissible, it would indicate that parolees had no Fourth Amendment rights at all. My decision in this case indicates nothing of the sort. I merely find that on this limited set of facts the search of Hope was not unreasonable. Accordingly, defendants' motion for summary judgment is granted, and the complaint is dismissed. The Clerk is directed to close the case.
So ordered.