
    The People of the State of New York, Respondent, v Joshaway Jackson, Appellant.
    Argued October 19, 1978;
    decided December 21, 1978
    
      POINTS OF COUNSEL
    
      Richard A. Miller for appellant.
    Pursuant to CPL 410.50, reasonable cause did not exist to allow the probation officer’s search of movant-appellant’s automobile, which search was instigated by a police officer with full knowledge of defendant’s probationary status, therefore, the subsequent seizure was illegal and violated the constitutional rights of the movant. (Morrissey v Brewer, 408 US 471; People v Fortunato, 50 AD2d 38; People v Huntley, 53 AD2d 820; United States v Winsett, 518 F2d 51; United States ex rel. Coleman v Smith, 295 F Supp 1155; Coolidge v New Hampshire, 403 US 443; Byars v United States, 273 US 28; People v Santos, 82 Misc 2d 184; People v Way, 65 Misc 2d 865; United States ex rel. Sperling v Fitzpatrick, 426 F2d 1161.)
    
      Lawrence T. Kurlander, District Attorney (Sharon P. Stiller of counsel), for respondent.
    I. The probation officer’s search of probationer Jackson’s vehicle was rationally and reasonably related to the probation officer’s duties and did not violate Jackson’s Fourth Amendment rights. (People v Huntley, 43 NY2d 175; United States v Consuelo-Gonzalez, 521 F2d 259; People v Fortunato, 50 AD2d 38.) II. Assuming arguendo that the search of Jackson’s vehicle was unreasonable, the exclusionary rule does not apply to exclude illegally seized evidence at a probation revocation hearing. (United States v Vande
      
      mark, 522 F2d 1019; United States v Winsett, 518 F2d 51; United States ex rel. Sperling v Fitzpatrick, 426 F2d 1161; Mapp v Ohio, 367 US 643.)
   OPINION OF THE COURT

Wachtler, J.

The question on this appeal is whether a probation officer, who has received anonymous information that a defendant on probation has a gun and is dealing in drugs, may summarily search the defendant, his automobile and other possessions. The courts below held the search was valid and the defendant has appealed.

In 1973 the defendant, charged with possessing dangerous drugs and a weapon, pleaded guilty to the weapon charge. On May 5, 1974 he was sentenced to five years probation. A year and one half later Sergeant McBurney of the Webster Police Department received information from an unknown individual that an employee at the Webster branch of the Xerox Corporation possessed a weapon and was also "dealing drugs at the corporation.” The anonymous informant identified the employee as Josh Jackson and said that he drove a Cadillac bearing license plate number 829MDS. This information was received by Sergeant McBurney between 3:30 and 4:00 o’clock on the afternoon of November 25, 1975.

The following morning, November 26, Sergeant McBurney verified that the car was registered to the defendant. He also made a record check on the defendant and found that he was on probation. At approximately 10:30 a.m. he called the defendant’s probation officer, Edward Petrovick, and told him of the information he had received. During the conversation McBurney indicated that he did not know who the informant was. Petrovick then consulted his supervisor and they decided "to go out to the Webster plant and make a search.” At Petrovick’s request Sergeant McBurney agreed to accompany him and another probation officer while they made the search because, as Petrovick noted, the probation officers were not armed.

They arrived at the Xerox plant at approximately 2 o’clock that afternoon. A security officer pointed out the defendant’s car, but the officers found that it was locked. The defendant was summoned and searched after Petrovick advised him, in general terms, that he had reason to believe that the defendant was "in violation of his probation.” Nothing was discovered during this search. Petrovick then asked the defendant for his car keys which the defendant said were in his locker. Petrovick searched the locker and found the keys, but no evidence of criminal conduct or violation of probation. The probation officers then searched the defendant’s car and found a small hand gun.

A proceeding was commenced to revoke probation. The defendant was also indicted for possessing a dangerous weapon. Before trial on the indictment a hearing was held with respect to the revocation of probation (see CPL 410.70). At the outset the defendant claimed that the search was illegal. The trial court held, however, that a probationer does not have the same rights as other citizens under the Fourth Amendment and that it is unnecessary for "a probation officer to obtain a warrant based upon probable cause in order to search the residence or automobile of a probationer.” The court also found that the defendant had violated probation by possessing the weapon (see CPL 410.10, subd 2). Probation was revoked and the defendant was sentenced to an indeterminate term of imprisonment for a maximum of seven years. The Appellate Division affirmed, without opinion (55 AD2d 1054).

We recently held in People v Huntley (43 NY2d 175) that a person on parole, although legally in custody and subject to supervision, is nevertheless constitutionally entitled to protection against unreasonable searches and seizures. A person on probation, subject to similar restraints (see CPL 410.50, subds . 1, 2) should be similarly protected. Of course the defendant’s status as a parolee or probationer is relevant in determining the reasonableness of the search (People v Huntley, supra, p 181). Whether the search of a person in custody and subject to continuing supervision is reasonable cannot be assessed according to the standard applicable to persons whose activities are not subject to such scrutiny.

In addition, with respect to probation officers, it is important to note that since 1971 their authority to search a person on probation has been governed by statute. CPL 410.50 (subd 3) states: "If at any time during the period of probation the court has reasonable cause to believe that the defendant has violated a condition of the sentence, it may issue a search order. Such order must be directed to a probation officer and may authorize such officer to search the person of the defendant and/or any premises in which he resides or any real or personal property which he owns or which is in his possession.” The statute also permits a more limited search incident to an arrest. CPL 410.50 (subd 4) states: "When a probation officer has reasonable cause to believe that a person under his supervision pursuant to a sentence of probation has violated a condition of the sentence, such officer may, without a warrant, take the probationer into custody and search his person.” The statute further provides that a probation officer making an arrest or executing a search order "may be assisted by a police officer” (CPL 450.10, subd 5).

The substantive test, namely, "reasonable cause to believe that the defendant has violated a condition of the sentence”, apparently codifies case law which had generally held that the "test of what is reasonable as a prerequisite for a search of the person or property of a probationer or parolee is whether the search is consistent with the duty to supervise adherence to the conditions of probation or parole and the duty to influence the offender to refrain from unlawful conduct” (Preiser, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 410.50, p 149). This is essentially the same standard we have recently held should be used to determine the validity of a search of a person on parole by his parole officer (see People v Huntley, 43 NY2d 175, 181, supra).

In the Huntley case the parole officers had personal knowledge that the defendant had violated at least three conditions of his parole. He had failed to report on two occasions; he had quit his job without informing his parole officer and he had accepted welfare payments without obtaining permission. We noted that he had "demonstrated that he was thoroughly unreliable” and concluded that "the parole officer’s conduct in searching the apartment for a possible explanation of his otherwise unexplained failure to report was permissible”, particularly in view of the fact that he was not suffering from any apparent disability (People v Huntley, supra, p 182).

Here, however, there is no indication that the defendant had proved unreliable. There is no evidence that he failed to report and the record shows that he had been employed by Xerox for approximately nine years. There is only the anonymous accusation. The People note that the probation officer had a duty to investigate this complaint, which of course is true. But it does not follow from this that it was reasonable for the probation officer to begin the investigation by conducting a wholesale search of the defendant, his locker and his automobile. Indeed the probation officer himself was unable to explain at the hearing why he and his superiors chose to investigate the complaint in this extreme manner. There was no apparent need for haste. The probation officers spent several hours discussing the matter. During those discussions it must have been noted that the defendant had not previously demonstrated that he was an unreliable probation risk, that the source of the information could not be assessed and that there were other methods for determining whether there was any substance to the claim. As far as this record shows the determination to investigate the complaint by conducting a thorough search was completely arbitrary.

To uphold the search in this case would hardly be consistent with the recognition of a probationer’s constitutional right to be free of unreasonable searches and seizures. If that right means anything it must at least mean that a probationer who has not previously violated the conditions of his sentence should not be subjected to a complete search of his person and property whenever his probation officer receives an anonymous phone call.

In addition, even if there was reasonable cause to conduct the search, the probation officers should not have acted without a court order. The statutory provisions cited earlier (CPL 410.50, subds 3, 4) also establish a procedure for the search of probationers which, it has been noted "is somewhat different than the procedure apparently authorized by prior case law. The CPL does not provide for a search of a probationer or his property without a court order except as incident to taking the probationer into custody” (Preiser, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 410.50, p 149).

That procedure was completely ignored in this case. The defendant was not taken into custody and subjected to a limited search of "his person” (CPL 410.50, subd 4). The defendant’s probation officer and his supervisor did not decide to take him into custody but determined instead "to go out to the Webster plant and make a search.” And even if the defendant had been taken into custody, authority to conduct a protective search of his person could not have extended to his locker and automobile. As the drafters of the statute noted "The authority to search in this case is more circumscribed than the authority to search in the case where the court issues a [search order]” (see Commission Staff Comment to the Proposed CPL, § 210.30, subd 3, now CPL 410.50, subd 4). Thus a search of the defendant’s locker and car or any other "personal property which he owns” could only have been authorized by a search order (CPL 410.50, subd 3) and the probation officers had not obtained one.

This failure to obtain court approval was not justified by any exigency. Certainly the police officer who originally received the information felt no exigency since he waited until the following day to begiii his investigation. And, as indicated, the probation officers spent several hours debating the proper course and several hours more proceeding to the Xerox plant. In fact the record shows that when they received this information they were in their office, which is just one floor above the court where the defendant was sentenced. Under the circumstances there was more than enough time to submit the matter to the court as required by the statute.

Accordingly the order of the Appellate Division should be reversed and the motion to suppress granted, and the matter remitted to the County Court for further proceedings on the charge of violation of probation.

Jasen, J.

(dissenting). The majority holds that absent exigent circumstances a probation officer may not search the personal property of a probationer without a prior judicial determination that reasonable cause exists to believe that the probationer has violated the terms of his probation. With this conclusion I cannot agree and must, therefore, respectfully dissent.

There is no dispute that a probationer, like a parolee, does not upon the acquisition of probationary status relinquish all constitutionally guaranteed rights. (See Gagnon v Scarpelli, 411 US 778; Morrissey v Brewer, 408 US 471.) His right to be free from unreasonable searches and seizures (US Const, 4th Amdt; NY Const, art I, § 12) remains inviolate notwithstanding his probationary status. (Cf. People v Huntley, 43 NY2d 175.) However, as in the case of a parolee, the reasonableness of a search or seizure is not to be measured by standards applicable to individuals not on probation or parole. What may constitute an unreasonable search of a law-abiding citizen may nevertheless constitute a reasonable search of a probationer. (See People v Fortunato, 50 AD2d 38, People v Vales, 78 Misc 2d 443; People v Adams, 71 Misc 2d 658; People v L’Hommedieu, 62 Misc 2d 925; People v Chinnici, 51 Misc 2d 570; see, generally, White, Fourth Amendment Rights of Parolees and Probationers, 31 U Pitt L Rev 167; Note, Fourth Amendment Limitations on Probation and Parole Supervision, 1976 Duke LJ 71.) Equally significant to a determination of the reasonableness of a search imposed upon a probationer is the status of the individual conducting the search: that is, whether the search is conducted by a probation officer in performance of his duty in supervising a probationer or by a police officer in the course of routine investigation. (See United States v Consuelo-Gonzalez, 521 F2d 259, 266; cf. People v Huntley, 43 NY2d 175, 181, supra.)

Application of these principles in the present case dictates a finding that the search of appellant and his personal property was, under the circumstances, reasonable. Appellant had been placed on probation after pleading guilty to the crime of possession of a dangerous weapon in satisfaction of an indictment charging him with possession of drugs and a gun. The tip which Officer Petrovick, appellant’s probation officer, received from Sergeant McBurney indicated that appellant was once again in possession of drugs and a gun. Having received that information, Officer Petrovick, as appellant’s probation officer, had a duty both to appellant and to society to investigate the complaint. Had Officer Petrovick closed his eyes to this information, the possibility existed that appellant might have become involved in more serious trouble causing injury to a third party and perhaps foreclosing any chance of his rehabilitation.

Significantly, this is not a case in which the police, armed with less than probable cause, merely employed a probationer’s probation officer as a tool to effectuate a search in calculated circumvention of a probationer’s constitutional rights. The decision to investigate the complaint was made by the probation department, which contacted the police department to arrange for a police officer to accompany Officer Petrovick and a fellow probation officer during the investigation. As testified to by Officer Petrovick, the request for a police escort was motivated by safety considerations prompted by the legitimate belief that appellant was armed with a gun, an all the more alarming discovery when coupled with the realization that probation officers do not carry guns. Moreover, once on the scene the limited role played by Sergeant McBurney in the investigation militates against any finding of deliberate circumvention of constitutional rights by the police. An examination of the record reveals that only Probation Officers Petrovick and Shevlin participated in the search of appellant’s automobile. Nor can it be said that Officer Shevlin’s participation in the search and his ultimate discovery of the weapon invalidates the search. This court has stated on a previous occasion, with respect to a search of a parolee, that an otherwise valid search does not become impermissible merely because the parolee’s parole officer enlisted the aid of fellow parole officers in conducting the search. (People v Huntley, 43 NY2d 175, 182, supra.)

The majority, however, holds the validity of this search dependent upon literal compliance with a procedure adopted by the Legislature in 1971 for the supervision of probationers. (CPL 410.50.) While this procedure does provide for the issuance by a court of a "search order” based upon reasonable cause, I cannot subscribe to the view espoused by the majority that, absent exigent circumstances, a search order must be secured prior to the search of a probationer’s property or of his person if he is not taken into custody.

Nothing in the procedure adopted by the Legislature suggests that the availability of a search order was intended to pre-empt, rather than merely codify, existing case law (see Preiser, Practice Commentary, McKinney’s Cons Laws of NY, Book 11A, CPL 410.50, p 149), sustaining a warrantless search of a probationer on less than probable cause. (People v L’Hommedieu, 62 Misc 2d 925, supra; People v Chinnici, 51 Misc 2d 570, supra.) Had the Legislature intended to modify existing case law by requiring, except in exigent circumstances, that a probation officer secure a search order based upon reasonable cause before searching a probationer and his property, it could have so stated. Inasmuch as the Legislature has not done so, I would view the procedure adopted for the supervision of probationers as permissive, rather than mandatory.

It is not contended, nor could it be successfully contended, that there exists in this case any evidence of harassment on the part of Officer Petrovick, which might render an otherwise reasonable search unreasonable. (Cf. United States ex rel. Randazzo v Follette, 282 F Supp 10, 13, affd 418 F2d 1319, cert den 402 US 984.) On the contrary, the record indicates that Officer Petrovick’s conduct in searching appellant was reasonably related to his duty as a probation officer. Probation officers must be given wide latitude to investigate and conduct a search of a probationer if the rehabilitative goal of probation as a socially desirable alternative to incarceration is to be realized. As a practical matter, absent vigilant supervision, the average probationer might not receive sufficient impetus to deter his further involvement in criminal activity during probation. Such an unfortunate occurrence would be injurious not only to society and the individual probationer, but also to the continued viability of probation as a productive alternative to incarceration.

An interpretation of CPL 410.50 as mandating that probation officers obtain prior judicial approval before searching a probationer may tip the scale upon which sentencing courts weigh the benefits probation affords a convicted defendant as against the risks incurred by society, creating a greater hesitancy to sentence defendants to a period of probation, rather than incarceration. (Cf. People v Dowery, 20 Ill App 3d 738, affd 62 Ill 2d 200.) Until the Legislature expressly indicates its intention to require a judicial determination of reasonable cause before a probation officer may search a probationer’s personal property or his person if he is not taken into custody, I would not disturb this balance.

Accordingly, the order of the Appellate Division should be affirmed.

Judges Jones, Fuchsberg and Cooke concur with Judge Wachtler; Judge Jasen dissents and votes to affirm in a separate opinion in which Chief Judge Breitel and Judge Gabrielli concur.

Order reversed, etc.  