People v. Santos , 31 A.D.2d 508 ( 1969 )

Steuer, J.

On September 23, 1963, defendant was convicted of attempted criminally possessing a revolver ás a felony and was sentenced to State prison for a term of one year and nine months to three years and six months. On April 20, 1966, Santos was released on parole from Auburn State Prison. On May 8,1966, a Police Detective received information giving him reasonable grounds for belief that Santos was dealing in stolen goods. He contacted Santos’ Parole Officer, who procured a warrant for his arrest for parole violation. The two repaired to the defendant’s apartment. He was not at home, but the landlady admitted them. The Parole Officer searched the apartment and .several items of stolen jewelry were discovered. Santos was indicted for criminally receiving stolen property. His motion to suppress the evidence was denied and he pleaded guilty. His appeal is based on the alleged illegality of the search.

A parolee is still in legal custody (People ex rel. Natoli v. Lewis, 287 N. Y. 478). The constructive custody is continuous, during the period of parole, .subject to being reduced to actual custody (People ex rel. Cecere v. Jennings, 250 N. Y. 239). And this may be done by action of the Parole Board despite the fact that the board acted upon grounds that would not .support a conviction (People ex rel. Natoli v. Lewis, supra). Clearly, whatever constitutional rights a parolee may enforce, they are not equal to the rights enjoyed by one not under a similar disability. Concededly one in actual custody pursuant to lawful conviction enjoys no immunity from search of his person or his prison quarters at any time. It is unnecessary for the decision of this case to determine whether this denigration of rights goes to the same extent in the case of a parolee. Undoubtedly he is subject to a search that would be impermissible in the ordinary situation (People v. Randazzo, 15 N Y 2d 526).

The distinction is that the protection afforded by the Fourth Amendment is only against unreasonable .searches, and what is reasonable in the case of a parolee is not the same as what is reasonable in the case of another (United States v. Follette, 282 F. Supp. 10). The very concept of parole entails a degree of supervision of parolees consonant with its purposes. Included within that supervision would be such searches as would reasonably be called for. It cannot be questioned that the Parole Officer had reasonable grounds for investigation as to whether the defendant here was violating his parole and that the search was a proper incident of that investigation. In that context, it was reasonable.

The judgment .should be affirmed.