Petitioner Edward Gueits (hereinafter Petitioner) seeks a writ of habeas corpus

directed both to the Warden of George Motchan Detention Center at the Rikers Island Correctional Center and the New York State Department of Corrections and Community Supervision (hereinafter, Respondent or DOCCS). Besides release, Petitioner seeks to vacate Parole Warrant #637436 and to cancel any parole violations charged against him.

According to Petitioner, the parole violation proceedings arose from Petitioner's January 6, 2012 arrest for violation of NYC Admin. Code §10-131(i)(3) (Possession of Ammunition). Petitioner was arraigned in New York City Criminal Court (Bronx County) under Docket No. 2012BX01228. There is a dispute between the parties concerning what charges were involved in Petitioner's arrest with the prosecutor maintaining that Petitioner [*2]was arrested for Criminal Possession of a Weapon in the Fourth Degree (Penal Law §125.25) while in possession of seven explosive bullets. Ultimately, the People and Petitioner resolved the criminal case by conditional discharge with a plea to Disorderly Conduct (Penal Law §240.20) on June 21, 2012. The Criminal Court made no determination concerning whether the evidence seized or the statements made were available for use in the criminal proceeding.

Parole Proceedings

On March 20, 2012, DOCCS took Petitioner into custody for parole violations in issue here arising from the criminal gun related arrest, having executed and lodged a warrant on the same day. Petitioner requests a Dunaway/Mapp and Huntley hearing for the Court to determine whether to suppress the fruits of an allegedly unlawful police action in the parole hearing. This includes all physical evidence seized during the search of the vehicle and Petitioner's person on January 12, 2012 and includes statements made to police.

Regarding his parole status, Respondent declared Petitioner delinquent on January 6, 2012 for violating his release conditions. The parole warrant was issued on March 16, 2012, and lodged on March 20, 2012. Petitioner was served with a copy of the Violation of Release Report and a Notice of Violation on March 26, 2012, and Petitioner subsequently waived his Preliminary Hearing on the parole violations.

Background

Petitioner was incarcerated for a 1990 conviction in Bronx County Supreme Court for Murder in the Second Degree (Penal Law §125.25). He was sentenced to five years to life imprisonment. Petitioner's release to parole occurred on September 2, 2009, after he signed the Certificate of Release to Parole Supervision (see, Exhibit A). The Violation of Release Report charges Petitioner with eight violations, including possession of explosive bullets in violation of Rule 13 (Charges 1 to 7) and Rule No. 8 (Charge 8) (see, Petitioner's Exhibit B).^[FN1] All charges are pending the Final Parole Hearing which is presently scheduled to be held on November 2, 2012.

Petitioner's Position

Petitioner argues for release because evidence of his parole violations was illegally seized during a search of his automobile, including statements obtained after the unlawful detention and search, making the evidence inadmissible in a parole hearing (see generally, People ex rel. Piccarillo v. New York State Bd. Of Parole, 48 NY2d 76 [1979]).

Petitioner says statements made in police custody should be suppressed upon the grounds that the alleged statements violate the Fourth, Fifth, and Fourteenth Amendments [*3]to the federal constitution, Article I, §12 of the New York State Constitution,^[FN2] and common law. Such statements, Petitioner says, were made involuntarily as defined by CPL §60.45 and occurred without the police giving Miranda warning.^[FN3]

In summary, Petitioner argues there was no reasonable suspicion to justify the initial stop and the search of his automobile (see generally, People v. Ocasio, 85 NY2d 982 [1995]). In essence, Petitioner asserts that he was doing nothing illegal and he was complying with all traffic laws. Thus, no reasonable suspicion justifies the initial stop. Even if there was reasonable suspicion to justify the initial traffic stop, there was no valid basis to search Defendant (see generally, People v. Marsh, 20 NY2d 98 [1967]). Thus, the evidence for which Petitioner seeks suppression was obtained in violation of his rights under the Fourth and Fourteenth Amendments and Article I §12 of the New York State Constitution (see generally, People v. Hollman, 79 NY2d 181 [1992]). Petitioner asks the Court for an order suppressing the evidence seized or, in the alternative, holding a hearing to determine the merits of the instant motion. In essence, Petitioner seeks a Mapp hearing to determine admissibility of the physical evidence seized (see, Mapp v. Ohio, 367 US 643 [1961]).^[FN4]

Respondent's Position

Respondent's position simply stated is that the writ petition must 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] [citing Pennsylvania Bd. of Probation & Parole v. Scott, 524 US 357 [1998]).^[FN5] Thus, Respondent cannot introduce evidence from the search at the final parole hearing (see, People ex rel. Owens v. Warden, Index No. 250092-2012 [Sup Ct Bronx 2012]).

DOCCS says its position is supported by the Supreme Court's decision in Pennsylvania Bd. Of Probation & Parole v. Scott, supra, where, Respondent says, the Supreme Court teaches that "(a)pplication of the exclusionary rule would both hinder the [*4]functioning of state parole systems and alter the traditionally flexible, administrative nature of parole revocation proceedings." The rule would provide only minimal deterrence benefits in this context, because application of the rule in the criminal context already provides significant deterrence of unconstitutional searches (see, Pennsylvania Bd of Probation & Parole v. Scott, supra). See also, People ex rel. Owens v. Warden, Index No. 250092-2012 (Sup Ct Bronx 2012); People ex rel. Horrach v. Warden, Index No. 1269-2006 (Sup Ct Bronx 2007); People ex rel. Thomas v. Warden, Index No. 250660-2007 (Sup Ct Bronx 2007).^[FN6] Because the exclusionary rule no longer applies to parole revocation hearings, the petition must be dismissed (see generally, Townes v. City of New York, 176 F3d 138 [2nd Cir 1999]).

Petitioner's Reply

In reply, Petitioner maintains that because the exclusionary rule applies to parole revocations, a hearing must be held concerning whether physical evidence and statements sought to be introduced at Petitioner's Final Revocation Hearing were illegally seized and whether statements he made to police were the fruits of an unlawful seizure. Petitioner contends the Court of Appeals has not determined that Picccarillo, supra, is abrogated by Scott, supra, and therefore the exclusionary rule applies to Final Revocation Hearings at this time. In this regard, Petitioner cites various Appellate Division cases which he says require that a parolee must be given opportunity to litigate the prospective use of evidence against him in a final revocation hearing (see, People ex rel. Horrach v. Warden, 52 AD3d 254 [1st Dept 2008], leave to appeal den'd, 11 NY3d 707 [2008];^[FN7] People ex rel. Johnson v. NY State Division of Parole, 299 AD2d 832 [4th Dept 2002]; People ex rel. Victory v. Travis, 288 AD2d 932 [4th Dept 2001]).

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 car and person were searched. 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 even when not incarcerated, his right to be free [*5]from unreasonable searches and seizures is guaranteed (see generally, People ex rel. Victory v. Travis, supra).

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, supra, 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 High Court found that the 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.

The Court finds that the Appellate Division cases from the Fourth Department, cited by DOCCS, do not settle the issue for this Court. Neither does People ex rel. Horrach v. Warden, supra, from our Appellate Division, since that Court approved the petitioner's dismissal upon factually specific reasons.

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 searches in issue.^[FN8] [*6]

Because there is no longer a pending criminal matter, the branch of Petitioner's motion for a Mapphearing is granted. Accordingly, the matter should be set down for hearing. A Mapp hearing deals with physical evidence recovered by law enforcement. At said hearing, Petitioner can challenge the manner by which Respondent came into possession of evidence. If the Court finds that the evidence was unlawfully found, then 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

ORDERED that the parties are directed to contact the Part Clerk within twenty days of entry of this decision to schedule a Mapp hearing, and it is

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

ORDERED that the branch of the Petition seeking to cancel the 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^[FN9] constitutes the decision and order of this Court.

Dated: Bronx, New York

January 31, 2013

DOMINIC R. MASSARO, JSC