Fourth Department upholds pretextual, warrantless "parole" search

People v Taylor, 2012 NY Slip Op 05463 [4th Dept 2012] [available here]

With very few exceptions, the police need a warrant before entering and searching your home. It is a protection built into our system as a hedge against police power, a requirement that a neutral judge review the available evidence and determine that there is probable cause that the house will contain evidence of a crime (or a criminal) before signing off on the search.

In Taylor, the police stumbled on a handy way around the warrant requirement. The main suspect in a robbery was also on parole. According to the decision, "[a]t approximately 11:00 p.m. on the night of the robbery, the police officers contacted the parole officer whose duty it was to locate parolees, in order to obtain defendant's most recent address." The parole officer then informed the investigating officers that, as it happened, he was just on his way over to the suspect's house to have a little looksie-do and make sure the suspect was not violating his curfew. Also very conveniently, "it was the policy of the Division of Parole to have at least two officers present for any home visit made after 10:00 p.m.," and therefore "the parole officer asked the police officers if they would accompany him."

How fortunate! The Fourth Department took the serendipitous version of events at face value, concluded that the warrantless search of the suspect's home was lawful as related to "parole-related objectives," and upheld the trial court's refusal to suppress the handgun found in the apartment.

Interestingly, the Court did reverse the trial court's ruling that the handgun was admissible in evidence at trial. The gun was inoperable, and was in no way connected to the fresh robbery. The trial court let the gun in anyway to "explain statements" made by the defendant, but the Fourth Department held that "the probative force of that evidence did not outweigh its potential for prejudice." (Taylor at *2.)

Yet, alas, still no joy for the defendant: the Fourth went on to hold that the error in admitting the gun was harmless, given the other evidence of defendant's guilt (including a positive identification by an "ex crack head who had a criminal history").