NY Co. Court: Despite Samson, parole search here was arbitrary and suppressed

Despite Samson, New York case law has engrafted a requirement of some cause for a parole search to avoid arbitrariness and harassment, which Samson doesn’t even allow. The stop and search here was arbitrary, and it is suppressed. People v. Bermudez, 2015 NY Slip Op 25208, 2015 N.Y. Misc. LEXIS 2155 (Monroe Co. June 19, 2015):

Accordingly, it becomes necessary for this court to consider the impact of Samson on the constitutionality of parolee searches in New York. In that 2006 case, the Supreme Court held that “the Fourth Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.” At issue was a California statute which explicitly provided that every parolee in California is “subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” The court noted specifically that it did not need to reach the issues of whether parolees consented to a waiver of their constitutional rights by acceptance of the search conditions or if the search condition could be justified due to the “special needs” of parole supervision. Instead, the court based its decision on the reasonableness of the state statutory scheme regarding parolees.

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Neither Samson nor Huntley countenance “arbitrary, capricious or harassing searches” of any citizen and the Supreme Court in Samson deferred to the discretion of the states regarding the issue of suspicionless searches of those paroled from prison. The clear consensus reached in our New York cases is that prior to contact with the parolee the parole officer must have, at the very least, an articulable and particularized concern substantially and rationally related to parole supervisory responsibilities to justify seizure and a search. On the record developed before this court, Mr. Bermudez’s parole officer failed to provide any justification what-so-ever for walking up to Mr. Bermudez and placing him in handcuffs. Moreover, even if unexpressed “officer safety” due to the recent residential shooting and Mr. Bermudez’s prior record might somehow justify such action, once any threat was neutralized there was absolutely no justification related to parole supervision to search Mr. Bermudez without first inquiring as to whether he was headed home to make his curfew or ask what he was doing in the area.