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Supreme Court, Appellate Division, Second Department, New York.

The PEOPLE, etc., Appellant, v. Bryan HALE, Respondent.

Decided: May 26, 1998

Before THOMPSON, J.P., and KRAUSMAN, GOLDSTEIN and LUCIANO, JJ. James M. Catterson, Jr., District Attorney, Riverhead (Michael J. Miller, of counsel), for appellant. David W. Clayton, Hauppauge, for respondent. Dennis C. Vacco, Attorney General, New York City (Barbara G. Billet, Nancy A. Spiegel and Julie S. Mereson, of counsel), amicus curiae pro se.

At issue here is whether a condition of the defendant's sentence of probation on a prior conviction, which authorized the warrantless search of the defendant's “place of abode”, violated the defendant's constitutional or statutory rights.   We hold that it did not.

Upon his conviction of criminally negligent homicide and violating Navigation Law § 49-a(2), the defendant was sentenced on March 5, 1996, to five years probation with alcohol and narcotics conditions, pursuant to a negotiated plea agreement.   These additional conditions of probation included, in pertinent part:

“(b) That you permit search of your vehicle and place of abode where such place of abode is legally under your control, and seizure of any narcotic implements and/or illegal drugs found, such search to be conducted by a Probation Officer or a Probation Officer and his agent.

“(c) When ordered by the Probation Department, you are to submit to any recognized tests that are available to the Probation Department to determine whether you have been using drugs”.

The defendant signed an acknowledgment that he read and understood the above conditions of probation and agreed to abide by them, which was co-signed by a witness and the sentencing judge.   Thereafter, on March 11, 1996, the defendant's probation officer explained the conditions to the defendant.   The defendant appeared to understand the conditions and agreed to abide by them.

As part of his probation, the defendant submitted to several urine tests which were positive for the presence of cocaine derivatives.   The defendant was advised by his probation officer, at first orally and then by letter dated December 11, 1996, that he was required to enter an in-patient treatment center.

On January 8, 1997, the mother of the homicide victim informed the defendant's probation officer that the defendant was dealing in drugs, and that her son had purchased drugs at the defendant's house.   After consultation with his supervisor, the defendant's probation officer decided to search the defendant's home with the aid of the Southampton Town Police.

On January 9, 1997, the probation officer went to the defendant's place of employment and informed him that “under the conditions of your probation, we have to search your house right away”.   The defendant accompanied his probation officer to his home and opened the front door for the officer and Southampton Town Police.   Guns and cocaine were recovered from the defendant's home, and the defendant made a written statement.   The defendant was arrested and charged with criminal possession of a controlled substance in the third degree (two counts), criminal possession of a weapon in the fourth degree, and criminally using drug paraphernalia in the second degree.

The defendant moved to suppress the physical evidence and his statement on the ground that the search of his residence was a violation of his rights under the United States and New York State Constitutions, and his statutory rights pursuant to CPL 410.50.   The defendant contended that the search was invalid “regardless of his prior execution of a consent to search as a condition of probation”.

After a hearing, the Supreme Court granted the defendant's application, holding that the condition authorizing a search of the defendant's home without a warrant was contrary to law and the intent of the Legislature expressed in CPL 410.50.   We disagree.

In Griffin v. Wisconsin, 483 U.S. 868, 873-874, 107 S.Ct. 3164, 97 L.Ed.2d 709, the United States Supreme Court noted that

“A State's operation of a probation system, like its operation of a school, government office or prison, or its supervision of a regulated industry * * * presents ‘special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements”.

 Probationers enjoy only “ ‘conditional liberty properly dependent on observance of special [probation] restrictions' ” (Griffin v. Wisconsin, supra, at 874, 107 S.Ct. 3164, quoting Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484).   Such conditions could include warrantless searches based upon less than probable cause (see, Griffin v. Wisconsin, supra).   Therefore, that the search of the defendant's premises was effected without a warrant did not violate the defendant's rights under the United States Constitution.

 Similarly, the New York Court of Appeals has held that the test for determining where a search “was unreasonable and thus prohibited by constitutional proscription must turn on whether the conduct * * * was rationally and reasonably related to the performance of * * * duty” of the parole officer or probation officer in the particular circumstances (People v. Huntley, 43 N.Y.2d 175, 181, 401 N.Y.S.2d 31, 371 N.E.2d 794;  see, People v. Jackson, 46 N.Y.2d 171, 175, 412 N.Y.S.2d 884, 385 N.E.2d 621).  In the instant case, where the probation officer had reasonable cause to believe that the defendant had violated the conditions of his probation, this test was clearly satisfied (see, People v. Johnson, 63 N.Y.2d 888, 483 N.Y.S.2d 201, 472 N.E.2d 1029;  People v. Fridell, 81 A.D.2d 869, 438 N.Y.S.2d 884).

 The primary issue before us is whether the warrantless search deprived the defendant of his statutory rights pursuant to CPL 410.50(3).   Pursuant to CPL 410.50(1), the probationer is in the “legal custody” of the court, which imposed sentence.   The probation department serves the court which imposed sentence by “supervising the defendant during the period of such legal custody” (CPL 410.50[2] ).  CPL 410.50(3) provides:

“If at any time during the period of probation the court has reasonable cause to believe that the defendant has violated a condition of the sentence, it may issue a search order.   Such order must be directed to a probation officer and may authorize such officer to search the person of the defendant and/or any premise in which he resides or any real or personal property which he owns or which is in his possession”.

This subdivision was drafted in recognition that “the right to order a search of the person and property of a probationer can be an important element in supervising his [or her] activities and protecting the public” (State of N.Y. Temporary Comm. on Rev. of the Penal Law and Criminal Code, Proposed New York Criminal Procedure Law, Staff Comment, § 210.10, at 278).

In People v. Jackson, supra, the Court of Appeals held that, in the absence of any exigent circumstances, the search of a probationer without a court order violated his statutory rights pursuant to CPL 410.50(3).   However, in that case, the sentencing court had not made permission to search a condition of probation.   In the instant case, the sentencing court determined, in advance, at sentencing, that authorizing the probation department to conduct searches of the defendant's place of abode for drugs or narcotics implements was necessary to supervise his activities.

The Appellate Division, Fourth Department, has generally concluded that imposition of such a search condition is “contrary to law” (People v. Braun, 177 A.D.2d 981, 578 N.Y.S.2d 2;  see, People v. Grisanti, 126 A.D.2d 938, 511 N.Y.S.2d 712;  People v. Suttell, 109 A.D.2d 249, 492 N.Y.S.2d 192;  but see, People v. Baer, 158 A.D.2d 1002, 552 N.Y.S.2d 878;  People v. Fortunato, 50 A.D.2d 38, 376 N.Y.S.2d 723).

Determining whether a condition of probation is “contrary to law” requires analysis of another statutory provision:  Penal Law § 65.10, relating to conditions of probation.   Pursuant to Penal Law § 65.10(1), a sentencing court may impose such conditions upon probation as it, “in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so”.   Such conditions include, inter alia, requiring the probationer to avoid injurious or vicious habits, to undergo available medical or psychiatric treatment, and participate in an alcohol or substance abuse program (Penal Law § 65.10[2][a], [d], [e] ).

As the Court of Appeals noted in People v. Letterlough, 86 N.Y.2d 259, 263-264, 631 N.Y.S.2d 105, 655 N.E.2d 146, “because the conditions of probationary sentences must be tailored to the particular defendant's case, and an exhaustive list of behavioral conditions would therefore have been impossible, the statute includes a catchall provision which grants the court wide latitude to require the defendant to ‘[s]atisfy any other conditions reasonably related to * * * rehabilitation’ (Penal Law § 65.10[2][l] [emphasis added] )”.   Such conditions “may have incidental punitive and deterrent effects” but must be “fundamentally ‘rehabilitative’ ” (People v. Letterlough, supra, at 265, 631 N.Y.S.2d 105, 655 N.E.2d 146;  see, People v. McNair, 87 N.Y.2d 772, 642 N.Y.S.2d 597, 665 N.E.2d 167).   Where, as here, the defendant's crime “stems from a substance abuse problem, the use of sentencing conditions as a tool of rehabilitation is especially meaningful” (People v. Letterlough, supra, at 264, 631 N.Y.S.2d 105, 655 N.E.2d 146).

This court has noted that such conditions may include “consent as a condition of probation, to permit certain types of searches * * * where there is a reasonable belief on the part of the probation officer that it is necessary to properly perform his or her duty” (People v. Brown, 114 A.D.2d 1035, 1036, 495 N.Y.S.2d 474).   The Appellate Division, Third Department, has held that the general rule enunciated in CPL 410.50(3) yields when the probationer consents to certain types of searches as a condition of probation (see, People v. Berkley, 152 A.D.2d 788, 790, 543 N.Y.S.2d 568, cited with approval in People v. Letterlough, supra, at 264, 631 N.Y.S.2d 105, 655 N.E.2d 146).   However, imposition of such a condition must be “reasonably related to the terms of defendant's probation” (People v. Berkley, supra, at 790, 543 N.Y.S.2d 568;  People v. Brattole, 170 Misc.2d 1037, 655 N.Y.S.2d 719).   Such a condition is considered “reasonably related to the terms of the defendant's probation” if there is evidence that, as in this case, the defendant is currently abusing drugs or his use of drugs had an impact on the incident resulting in his criminal conviction (see, People v. Brattole, supra).

 The imposition of search conditions has a deterrent effect on drug use, which, in the case where the defendant has a history of drug abuse, has a rehabilitative effect (see, State v. Turner, 142 Ariz. 138, 688 P.2d 1030;  People v. Mason, 5 Cal.3d 759, 97 Cal.Rptr. 302, 488 P.2d 630, cert. denied 405 U.S. 1016, 92 S.Ct. 1289, 31 L.Ed.2d 478;  Luke v. State, 178 Ga.App. 614, 344 S.E.2d 452;  State v. Gallagher, 100 N.M. 697, 675 P.2d 429;  State v. Morgan, 206 Neb. 818, 295 N.W.2d 285;  State v. Mitchell, 22 N.C.App. 663, 207 S.E.2d 263;  State v. Perbix, 331 N.W.2d 14 [N.D.];   State v. Age, 38 Or.App. 501, 590 P.2d 759;  Macias v. State, 649 S.W.2d 150 [Tex.];  United States v. Schoenrock, 868 F.2d 289;  United States v. Consuelo-Gonzalez, 521 F.2d 259).   Therefore, under those circumstances, the imposition of such a condition satisfies the rehabilitative requirements of Penal Law § 65.10(2)(l ).

 By accepting this special condition of probation, which was tailored to his individual needs, the appellant waived the “search order” requirement of CPL 410.50(3) applicable to probationers not subject to special conditions of probation (see, People v. Bravo, 43 Cal.3d 600, 238 Cal.Rptr. 282, 738 P.2d 336, cert. denied 485 U.S. 904, 108 S.Ct. 1074, 99 L.Ed.2d 234;  Allen v. State, 258 Ga. 424, 369 S.E.2d 909).   Since the defendant knowingly accepted the condition, he had a diminished expectation of privacy in his home (see, United States v. Thomas, 729 F.2d 120, cert. denied 469 U.S. 846, 105 S.Ct. 158, 83 L.Ed.2d 95;  Owens v. Kelley, 681 F.2d 1362;  State v. Turner, supra, 688 P.2d at 1034;  Macias v. State, supra, at 152).

Finally, we note that the defendant did not challenge the validity of the condition by appealing from his probationary sentence or by moving to vacate his sentence or to modify the conditions (see, CPL 440.20, 410.20;  Haynes v. State, 26 Md.App. 43, 337 A.2d 130;  Vale v. State, 486 S.W.2d 370 [Tex.];  Sanderson v. State, 649 P.2d 677 [Wyo.] ).

Accordingly, the order appealed from is reversed, on the law, and that branch of the defendant's omnibus motion which was to suppress physical evidence and his statement to the police is denied.

ORDERED that the order is reversed, on the law, and that branch of the defendant's omnibus motion which was to suppress physical evidence and his statement to the police is denied.


THOMPSON, J.P., and KRAUSMAN and LUCIANO, JJ., concur.

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