United States v. James Thomas , 729 F.2d 120 ( 1984 )

MESKILL, Circuit Judge:

Appellant James Thomas appeals from a judgment of the United States District Court for the Southern District of New York, Metzner, J., convicting him of two counts of illegal possession of United States Treasury checks. Thomas moved below to suppress the checks, contending that they were seized during an illegal search by his parole officer. When the district court denied the suppression motion, Thomas pleaded guilty to both counts while preserving his right to appeal the adverse decision on his suppression motion.

After Thomas served a state prison term in Pennsylvania for armed robbery, his parole supervision was transferred to New York under the Interstate Compact, N.Y.Exec.Law § 259-m (McKinney 1982) (adopted pursuant to 4 U.S.C. § 112 (1982)). Officer Rooney was assigned to supervise Thomas’ parole in November 1982. On April 7, 1983 Thomas reported to Rooney’s office for his regularly scheduled meeting and inquired about the termination of the parole. Officer Rooney procured Thomas’ file and after noting that the parole terminated in 1989, observed that Thomas had been convicted of narcotics possession in 1968. Rooney, who previously was unaware of the conviction, asked Thomas if he was still using drugs. When Thomas replied in the negative Rooney asked him to remove his jacket and roll up his shirt sleeves. Thomas complied, stating: “I knew you were going to do that.”

Rooney examined Thomas’ left arm and discovered several puncture marks. Thomas explained that he received the puncture marks during a blood test at a welfare office. Concluding that Thomas was using narcotics, Rooney instructed Thomas to stand up and face the wall. Rooney then searched Thomas, patting him down and searching his trouser pockets. Thomas again sat down. Rooney picked up Thomas’ jacket, opened the front pocket and removed a needle, a syringe, a plunger and cigarette rolling paper. Upon examining another jacket pocket, Rooney discovered an unsealed envelope with the flap tucked inside. Rooney opened the envelope and found eleven United States Treasury checks. Thomas explained that he had found the checks. Rooney then called the Postal Inspectors and the Secret Service. Based on the evidence he found, Rooney obtained an arrest warrant from his supervisor and placed Thomas under arrest for parole violation.

Thomas based his suppression motion on our decision in United States v. Rea, 678 F.2d 382 (2d Cir.1982), where we excluded evidence seized by federal probation officers in a warrantless search of a probationer’s apartment and held that a warrant is required unless “the search falls within a judicially recognized exception to the warrant requirement.” Id. at 388. The district court instead relied on our decision in United States ex rel. Santos v. New York State Board of Parole, 441 F.2d 1216 (2d Cir.1971), cert. denied, 404 U.S. 1025, 92 S.Ct. 692, 30 L.Ed.2d 676 (1972), and denied Thomas’ motion. In Santos, we held that a state parole officer could search a parolee’s apartment without a warrant. The court distinguished Santos and Rea by noting that Santos involved a state parole officer and that Rea dealt with a federal probation officer. The district court alluded to our discussion in Santos of a New York State parole officer’s statutory responsibility to ensure that the conditions of parole are not being violated and of how that responsibility requires that a parole officer be empowered to conduct searches of parolees that would violate the rights of ordinary citizens. The court concluded that Santos interpreted N.Y. Correction Law § 210 (McKinney 1968), which sets forth the duties of parole officers, as permitting a warrantless search. Noting that the present case involved a New York State parole officer, the district court found that Santos controlled and that the warrantless search of Thomas was proper because the narcotics conviction provided reasonable grounds for the parole officer’s investigation.

On appeal, Thomas claims that the parole officer’s search was illegal because the parole officer lacked both probable cause and a search warrant. We believe that neither Santos nor Rea controls the outcome here.¹ Nevertheless, we agree with the district court’s conclusion that the checks were admissible and we affirm the judgment of conviction.

Ordinarily, the “seizure of personal property [is] per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause.” United States v. Place, — U.S.-,-, 103 S.Ct. 2637, 2641, 77 L.Ed.2d 110 (1983). But Fourth Amendment protections extend only to “unreasonable government intrusions into ... legitimate expectations of privacy.” United States v. Chadwick, 433 U.S. 1, 7, 97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977). The focus of our inquiry into whether Officer Rooney’s search violated Thomas’ Fourth Amendment rights thus becomes whether Thomas had a legitimate expectation of privacy for his person and clothing at the time of the search and whether, in light of that expectation, Rooney’s actions were unreasonably intrusive.

The test for determining when an expectation of privacy is reasonable or legitimate was stated explicitly in Justice Harlan’s often cited concurring opinion in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967): “[T]here is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” Id. at 361, 88 S.Ct. at 516 (Harlan, J., concurring).

Thomas can satisfy neither prong of this test. First, it is obvious that he did not in fact have an expectation that his person or clothing would not be searched while he was in Rooney’s office. A New York parolee is required to sign a statement that he understands the conditions of his -release. 9 N.Y.C.R.R. § 8003.1(c) (1978). Thomas, as a transferee from the Pennsylvania parole system, had not signed such a statement but the conditions were read to him by Officer Rooney at the time of his transfer. The conditions included consent to searches and inspections of his person and property by his parole officer. Transcript of June 16, 1983 at 7, United States v. Thomas, No. 83 Cr. 340 (CMM) (S.D.N.Y. June 16, 1983) (testimony of Brian Rooney). Having been alerted to the conditions of parole, Thomas would not have the expectation of privacy enjoyed by ordinary citizens. Furthermore, Thomas manifested his diminished subjective expectation of privacy by saying, “I knew you were going to do that,” when Officer Rooney told him to roll up his shirt sleeves.

Second, because Thomas was a parolee his legally cognizable expectation that his person or clothing would not be searched while he was in Rooney’s office was substantially reduced. The status of parolees in our legal system is unique; they are “neither physically imprisoned nor free to move at will.” United States v. Polito, 583 F.2d 48, 54 (2d Cir.1978). A parolee does not enjoy “the absolute liberty to which every citizen is entitled, but only [a] conditional liberty properly dependent on observance of special parole restrictions.” Morrissey v. Brewer, 408 U.S. 471, 480, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Because of this unique position, a parolee “possess[es] fewer constitutional rights” than ordinary citizens, Polito, 583 F.2d at 54. The rights diminished by parolee status include Fourth Amendment protections from intrusions by parole officers. United States v. Bradley, 571 F.2d 787, 790 (4th Cir.1978); Latta v. Fitzharris, 521 F.2d 246, 248-49 (9th Cir.) (en banc), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975); United States ex rel. Santos v. New York State Board of Parole, 441 F.2d at 1218; United States ex rel. Randazzo v. Follette, 418 F.2d 1319, 1322 n. 7 (2d Cir.1969), cert. denied, 402 U.S. 984, 91 S.Ct. 1672, 29 L.Ed.2d 150 (1971).

A parolee’s diminished Fourth Amendment protection regarding searches by a parole officer arises from the necessity for effective parole supervision and the unique relationship of the parole officer and the parolee. United States v. Bradley, 571 F.2d at 790; Latta v. Fitzharris, 521 F.2d at 249. A parolee is in the legal custody of a parole officer who monitors the parolee’s adherence to the conditions of his or her parole. N.Y.Exec. Law § 259-i(2)(b) (McKinney 1982). A parole officer’s function, is twofold: “to guide the parolee into constructive development” and to prevent “behavior that is deemed dangerous to the restoration of the individual into normal society.” Morrissey v. Brewer, 408 U.S. at 478, 92 S.Ct. at 2598. To ensure that the conditions of parole are not being violated and to monitor the parolee’s progress of reintegration into society, a parole officer, of necessity, must have investigative powers to gather information about the parolee’s activities, environment and social contacts. Accord Latta v. Fitzharris, 521 F.2d at 249. Often such information can only be obtained by activities like searches that invade the privacy of the parolee to an extent that “would be unlawful if directed against an ordinary citizen.” United States ex rel. Santos v. New York State Board of Parole, 441 F.2d at 1218.

Expectations of privacy can vary, depending on circumstances and location. E.g., United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983) (travel route on public street); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976) (automobile); United States v. Lyons, 706 F.2d 321 (D.C.Cir.1983) (hotel room); United States v. Kaiyo Maru No. 53, 699 F.2d 989 (9th Cir.1983) (commercial property); United States v. MacPherson, 664 F.2d 69 (11th Cir.1981) (border search); United States v. Huie, 593 F.2d 14 (5th Cir.1979) (mail cover). A parolee’s diminished expectation of privacy would necessarily be further diminished while he is in his parole officer’s office. Even an ordinary citizen’s expectation of privacy is less in a public office than in a residence. See United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976) (sanctity of private dwelling ordinarily afforded most stringent Fourth Amendment protection); Harris v. United States, 331 U.S. 145, 151 n. 15, 67 S.Ct. 1098, 1102 n. 15, 91 L.Ed. 1399 (1947) (stricter requirements for dwelling searches). The expectation of privacy of a parolee in a parole officer’s office would be at its lowest ebb. See M.M. v. Anker, 607 F.2d 588 (2d Cir.1979) (per curiam) (teachers’ unique relationship to students including discipline, education and protection justifies limited search on less than probable cause on school premises).

In light of Thomas’ diminished expectation of privacy, the limited initial intrusion into his privacy, the request that he roll up his sleeves and the examination of his forearms, was not unreasonable. Once Rooney discovered Thomas’ previous drug conviction, it was his duty as a parole officer to investigate further to determine whether Thomas was being rehabilitated or was violating the conditions of his parole. The risk that a former narcotics user will “resume this habit while on parole [is] sufficiently great to justify periodic inspections of his arms for narcotic injection marks.” White, The Fourth Amendment Rights of Parolees and Probationers, 31 U.Pitt.L.Rev. 167, 192 (1969). See Illinois v. Lafayette, — U.S. -, 103 S.Ct. 2605, 2609, 77 L.Ed.2d 65 (1983) (search justified if “legitimate governmental interests” outweigh individual’s privacy interests).

We need not determine on this appeal the acceptable Fourth Amendment limits on a parole officer’s intrusion into a parolee’s privacy. It is enough to state that Rooney’s examination of Thomas’ forearms was clearly within whatever limits we would set. Neither was Officer Rooney’s further examination of appellant’s person and clothing after his discovery of fresh needle punctures on appellant’s forearm an unreasonable search. Observation of the puncture marks provided the parole officer with reasonable grounds to believe that Thomas was violating the condition of his parole prohibiting the use or possession of a controlled substance or drug paraphernalia. Given Thomas’ diminished expectation of . privacy and Officer Rooney’s need to fulfill his parole supervision function, the puncture marks justified further investigation of Thomas’ clothing. To require a parole officer who has reasonable grounds to believe that the parolee present in his office is violating the terms of parole to obtain a search or an arrest warrant before searching a parolee, and risk the destruction of evidence of the violation, would be absurd.

The judgment of conviction is affirmed.

1 . Both Santos and Rea deal with the search of residences rather than the search of a parolee while he is in his parole officer’s office. Rea, on which appellant relies, is further factually distinguishable. In Rea, four probation officers searched the home of a probationer and his common law wife over their objections and four days after receiving an anonymous tip that the probationer was engaged in criminal conduct.

The New York state cases cited in the dissent are also not dispositive. People v. Huntley, 43 N.Y.2d 175, 371 N.E.2d 794, 401 N.Y.S.2d 31 (1977) , concerns the search of a parolee’s residence by parole officers. In People v. Jackson, 46 N.Y.2d 171, 385 N.E.2d 621, 412 N.Y.S.2d 884 (1978) , the probation officers’ search was of a probationer’s locker, in which the officers discovered car keys, and a subsequent search of the probationer’s car. As in the Huntley case, the officers had delayed their search for several hours after receiving an anonymous tip.