People ex rel. King v. New York State Board of Parole , 412 N.Y.S.2d 138 ( 1979 )

OPINION OF THE COURT

Lane, J.

The facts in this case are undisputed. Gary King was released on parole on November 5, 1976 after having been previously sentenced to two concurrent terms of one-year-to-life imprisonment for criminal sale of a controlled substance in the third degree, a class A-III felony.

On October 10, 1977, King was arrested for possession of heroin. Defendant was indicted for this crime; however, a motion to suppress the illegally seized narcotics was granted on January 26, 1978, and the indictment resulting from the arrest on October 10, 1977 was ultimately dismissed on February 23, 1978. A further result of the October 10, 1977 arrest was the issuance of a parole violation warrant against King on November 10, 1977. King met with his parole officer and admitted to the possession of heroin for which he was arrested on October 10, 1977. A final parole revocation hearing was held on February 22, 1978, at which time King’s parole was revoked and parole release consideration was denied for a period of one year. At the parole revocation hearing which was held, notes of the parole officer relating to King’s admissions and a laboratory report regarding the alleged heroin which was seized, though requested, were not produced.

King petitioned for a writ of habeas corpus, which was sustained to the extent of vacating the finding of the Board of Parole and directing that a new hearing be held, at which time the items sought to be discovered should be produced. We would affirm.

The major question with which we are faced is whether King’s admission to his parole officer should be excluded. The rationale for exclusion is that the admission of parole violation to the parole officer stemmed from an illegal search and seizure occurring on October 10, 1977. Were we to agree with this rationale, we could nevertheless find that the admission to the parole officer should not be excluded from consideration because of the doctrine of attenuation; that is, since the evidence adduced by the parole officer was gained by means sufficiently distinguishable from the initial illegality, it was purged of the primary taint and therefore admissible against the parolee (Brown v Illinois, 422 US 590). The exclusion of the "fruit of the poisonous tree,” as it has been applied to criminal prosecutions, is based upon an intent to deter unconstitutional and improper police conduct (Elkins v United States, 364 US 206, 217; Terry v Ohio, 392 US 1, 29).

The case at bar is not one where an illegal arrest was deliberately made with the knowledge that King was on parole and, with the consideration that if an indictment would not survive, at the very least parole revocation would ensue. We can see, therefore, no deterrent effect in applying this exclusionary rule to a parole revocation hearing. In the case at bar, the parole officer was mandated to inquire independently whether a parole violation occurred (former Correction Law, §§ 210, 215, 216, now Executive Law, § 259-a, subd 5). His independent inquiry, mandated by statute, resulted in the admission by King and should be susceptible of consideration at a revocation hearing (cf. People v Huntley, 43 NY2d 175).

Since we view the parole officer’s inquiry as a proper execution of his duties, we hold that King’s statements to him would be admissible at the revocation hearing. We note at this juncture that a parole revocation hearing is not a stage of a criminal prosecution (Gagnon v Scarpelli, 411 US 778, 782), and the standards applied to the former do not carry over to the latter (Morrissey v Brewer, 408 US 471, 480). Accepting the rationale of deterrence of future illegal police activities as a basis for exclusion of evidence improperly seized, we nonetheless find no basis for applying the rule to parole revocation hearings where the parole officer’s inquiries were relevant. The revocation process involves a deprivation of a conditional liberty and, as such, the procedural protections afforded must be flexible in consonance with the demands of the particular situation (Morrissey v Brewer, supra, p 481; see, generally, Admissibility, in State Probation Revocation Proceedings, of Evidence Obtained Through Illegal Search and Seizure, Ann. 77 ALR3d 636).^*

The exclusionary rule was never intended to proscribe the use of illegally seized evidence in all proceedings or against all persons (see, e.g., United States v Calandra, 414 US 338, where exclusionary rule was not extended to Grand Jury inquiries), and we would therefore not apply it to the usual parole revocation proceedings, either, absent a showing of unreasonableness within the conditional rights of a paroleee (cf. People v Huntley, 43 NY2d 175, supra). To extend the rule here would be to damage the parole process to a degree far outweighing the tangential deterrent effects on improper police activity (United States ex rel. Sperling v Fitzpatrick, 426 F2d 1161; Matter of Martinez, 1 Cal 3d 641, cert den 400 US 851).

Lastly, we would note that though the exclusionary rule has been applied to administrative hearings (Matter of Finn’s Liq. Shop v State Liq. Auth., 24 NY2d 647), it should not be applied to a parole revocation hearing where the evidence sought to be suppressed "was not seized by the agents of, or for the purposes of, the agency conducting the administrative proceeding” (People v McGrath, 46 NY2d 12, 31-32).

Accordingly, the judgment of the Supreme Court, Bronx County (Cioffi, J.), entered July 31, 1978, which sustained the writ of habeas corpus to the extent of vacating the finding of the Parole Board and directing that a new hearing be held, should be affirmed, without costs.

* Principles applicable to probation revocation should apply equally to parole revocation (Gagnon v Scarpelli, 411 US 778, 782).