Petitioner Clifford Taylor (hereinafter Petitioner) seeks a writ of habeas corpus directed both to the Warden of George R. Vierno Center at the Rikers Island Correctional Center and the New York State Department of Correction and Community Supervision (hereinafter, Respondent). Besides release, Petitioner seeks to vacate Parole Warrant #618307 and to cancel any parole violation charged against him.

Background

Petitioner was incarcerated for a 2006 conviction in New York County Supreme Court for criminal possession of a controlled substance in the fifth degree (Penal Law §220.31) and attempted criminal possession of a weapon in the third degree (Penal Law § 265.02). He was sentenced to three years imprisonment with five years post release supervision. His release to parole s occurred on June 27, 2008, after Petitioner signed the Certificate of Release to Parole Supervision (see, Exhibit A).

Significantly, Condition # 4 in the Certificate of Release to Parole Supervision requires, inter alia., that Petitioner consent in advance, without further notice, to search of his person, residence and property. Similarly, Condition #9 provides Petitioner cannot own, possess or purchase any shotgun, rifle or firearm, without written permission.

The Violation of Release Report charges Petitioner with 13 violations, including possessing (1) [*2]loaded firearms, (2) live ammunition, (3) several hundred glassine bags suitable for packaging contraband, (4) a scale to weigh contraband, (5) a money counting machine and (6) a compressor used to seal contraband. At the preliminary hearing, Respondents narrowed Petitioner's violations to possession of a loaded firearm.

Petitioner's Position

Petitioner argues that he is entitled to release because evidence of his parole violations was illegally seized during a search of his apartment and subsequently illegally transported to a local police precinct, making this evidence inadmissible in a parole hearing (see generally, People ex rel. Piccarillo v. New York State Bd. of Parole, 48 NY2d 76 [1979]). In this regard, Petitioner says no dispute exists that this Court is the proper venue to determine evidentiary admissibility at the final parole hearing (see generally, People ex rel. Coldwell v. New York State Div. of Parole, 506 NYS2d 761 [2nd Dept. 1986]). Petitioner seeks a Mapp hearing^[FN1] to determine admissibility of the physical evidence seized and transported from his home by parole officers (see, Mapp v. Ohio, 367 US 643 [1961]).

Respondent's Position

Respondent's position simply stated is that the writ petition be dismissed because the exclusionary

rule no longer applies to parole hearings (see generally, People ex rel. Gordon v. O'Flynn, 3 Misc 3d 963 [Sup. Ct. Monroe 2004]).^[FN2] Thus, Respondent can introduce evidence from the search at the final parole hearing. Alternatively, Respondent argues that a warrantless search by a parole officer is not an illegal search and such evidence is admissible at a parole hearing (see generally, People v. Carrington, 25 AD3d 440 [1st Dept. 2006]). Further, that the apartment search was reasonably related to the parole officers' official duties, that is, the home visit was in furtherance of supervising Petitioner and there is no evidence that Respondent was acting on behalf of the police (Id.). Finally, Respondents argue the fact that the parole officers here were not Petitioner's regular officer is irrelevant and has no affect upon evidentiary admissibility.

Legal Discussion

In this writ application, Petitioner asks the Court to decide whether the exclusionary rule applies to his final parole violation hearing to suppress evidence obtained when Petitioner's safe was opened at a police precinct. Federal and state courts are diametrically divided upon the issue of whether the exclusionary rule is available.

State - In People ex rel. Piccarillo v. New York State Bd. of Parole, supra., our Court of Appeals found the exclusionary rule applies to parole revocation hearings. The Piccarillo court found that a parolee's right to be free from unreasonable searches and seizures exists under both federal and state constitutions. Further, the court said, although a parolee is legally in custody and subject to supervision, his right to be free from unreasonable searches and seizures is guaranteed (see generally, People ex rel. Victory v. Travis, 288 AD2d 932 [4th Dept. 2001] [rule reaffirmed]).

Federal - On the other hand, the United States Supreme Court reached an opposite conclusion regarding applicability of the exclusionary rule in parole revocation hearings. In Pennsylvania Bd. of Probation & Parole v. Scott, 524 US 357 (1998), the high court held that the exclusionary rule does not apply to parole hearings because the rule's costs outweigh any possible detrimental effect to the parolee, that is, the parolee is able to avoid consequences of a parole violation by good behavior. The court found that the [*3]exclusionary rule is a judicially created means of deterring illegal searches and seizures. As such, the rule does not proscribe illegally seized evidence in all proceedings or against all persons. Because the rule is prudential rather than constitutionally mandated, it is applicable only where its deterrence outweighs its substantial social costs (Id.).Since Scott, two trial level state courts have split upon whether Piccarillo is still valid in New York. In People ex rel. Gordon v. O'Flynn, supra., the local court found that Scott abrogates Piccarillo because there was no effort in Piccarillo to create a state constitutional rule permitting the exclusionary rule to be extended to parole revocation hearings. Likewise, the Gordon court found no subsequent state Court of Appeals decision referred to Piccarillo as interpreting the state constitution broader than its federal counterpart. Therefore, according to the Gordon court, Piccarillo was decided solely upon federal constitutional grounds and was, as a result, abrogated by the later Scott decision.

On the other hand, in State of New York v. Harder, 8 Misc 3d 764 (Sup Ct. Broome 2005), decided one year later, that trial court disagreed with Gordon, holding that until our Court of Appeals declares otherwise, Piccarillo remains the law of this state. In addition, the Harder court noted that Piccarillo specifically referred to rights established by both federal and state constitutions. Interestingly, the high court recently revisited the issue of searches involving a parolee, but this time in the context of a criminal prosecution (see, Samson v. California, 547 US 843 [2006]).^[FN3] A divided court found a police officer's suspicionless search of a parolee, under a California statute directing parolees to consent to a search at any time, did not violate the Fourth Amendment. Consequently, defendant's federal criminal conviction for methamphetamine possession was affirmed.

Conclusion

The Court finds that the exclusionary rule prohibiting use of illegally obtained evidence applies to all stages of the parole revocation process in New York (see, People ex rel. Piccarillo v. New York State Bd. of Parole, supra.). With this in mind, the Court finds that Petitioner raised reasonable concerns about the legality of the apartment search, including (1) whether the search was reasonable where parole officers searched without prior connection with Petitioner (see generally, People v. Huntley, 43 NY2d 175 [1977]) and (2) whether the search was reasonable when conducted at 6:30 A.M.. (see generally, People v. Hill, 2002 WL 88977 [1st Dept. 2003]).^[FN4] Finally, Petitioner maintains that the police entered into the equation once the safe was removed from the apartment, requiring that a warrant be obtained (see generally, People v. Dougall, 126 Misc 2d 125 [Sup. Ct. New York 1984] [In a motion to suppress, People have the initial burden of going forward upon the issue of the legality of police conduct, and, once met, defendant has the residual burden, by a fair preponderance of credible evidence, to show the contrary]).

Because there is no longer a pending criminal matter, the branch of Petitioner's motion for a Mapp hearing is granted. Accordingly, the matter should be set down. [*4]

A Mapp hearing deals with physical evidence recovered by law enforcement. At said hearing, a Petitioner can challenge the manner by which police come into possession of evidence. If the Court finds that the evidence was unlawfully found, then the Respondent is not allowed to use the evidence in the parole revocation hearing.

WHEREFORE, it is hereby

ORDERED that the branch of the Petition seeking a Mapp hearing is GRANTED; and it is further

ORDERED that the Clerk of the Court is directed to contact the parties to schedule a Mapp hearing, and it is further

ORDERED that the branch of the Petition seeking to vacate the herein underlying parole warrant is STAYED pending hearing, and it is further

ORDERED that the branch of the Petition seeking to cancel the herein parole delinquency is likewise STAYED, and it is further

ORDERED that the branch of the Petition seeking Petitioner's release from custody is likewise STAYED.

The foregoing^[FN5] constitutes the decision and order of this Court.

Dated: Bronx, New York

December 23, 2011

___________________________Dominic R. Massaro, JSC