Saturday, January 21, 2012

Parole Evidence

United States v. Barner, No. 10-3700-cr (2d Cir. (Sack, Raggi, CJJ, Eaton, JCIT)

This decision, a government appeal, reverses a district court order suppressing evidence obtained during a parole search.

Barner was released to New York State parole in 2007, and signed a Certificate of Release that included his consent to having his parole officer visit him at home and search and inspect his person, residence and property. Barner was also forbidden from possessing any sort of firearm, ammunition or body armor, and was subject to a curfew.

In early 2008, someone called Barner’s parole officer and told her that Barner had fired a gun at him. She and other officers tried to reach Barner at home that night - during his curfew period - but Barner was not there. This prompted Barner to obtain a parole violation arrest warrant. Two days later, Barner reported for his weekly appointment with his P.O., and was placed under arrest. Barner denied having any firearms, consented to a search of his residence, and gave the P.O. a key ring that had three keys - one to his apartment building, one to his apartment, and one to a storage area adjacent to the apartment. Barner was now in custody, and the officers brought him back to his apartment while they searched it. During that search, P.O.’s found various forbidden items, including a small bag of crack cocaine. One officer noticed the storage area, which was ten feet away from the entrance to the apartment, and used one of Barner’s keys to open it. Inside were four guns, a bulletproof vest, ammunition, a scale and some marijuana. Barner was charged in the Western District with being a felon in possession of the guns and ammo.

After a hearing, the district court suppressed the evidence. It held that the consent-to-search condition of Barner’s parole no longer applied because he was back in custody, and hence no longer on parole, and that the scope of the consent that Barner gave on the day of his arrest included his apartment only, and not the storage room.

The circuit disagreed. Given the “special needs” of supervising parolees, the relevant question was not the scope or validity of Barner's consent. It was “whether the conduct of the parole officer[s] was rationally and reasonably related to the performance of [their] dut[ies].” The P.O. began this investigation with information that Barner had possessed a gun and fired it at someone else, both criminal parole violations. It was “clearly reasonable” for the officer to investigate those allegations further, and it was reasonable for that investigation to include a search.

The district court also erred in concluding that Barner’s full Fourth Amendment rights were restored to him once he was arrested; to the contrary, the allegation of a parole violation and the issuance of the arrest warrant placed him “one step farther from the constitutional protection enjoyed by ordinary citizens.” Thus, Barner’s arrest for a parole violation did not render the search unreasonable. While it is possible that a search “conducted days or weeks after a parolee’s arrest and detention” might be “so attenuated from the parole officers’ duties” as to render it unconstitutional, Barner's not such a case.

By focusing on the “special needs” doctrine, and not the specifics of the consent, the circuit easily concluded the search of the storage room was lawful. That search was “reasonably related to the parole officers’ duties” and was “performed in furtherance” of them.

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