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United States District Court, Eastern District of New York
January 3, 2002
Defendant Sewn Newton is charged with possession of a firearm, having
previously been convicted of three crimes each punishable by imprisonment
for a term exceeding one year and each a violent felony or serious drug
offense. 18 U.S.C. § 922(g)(1), § 924(e)(1), and § 3551 et
seq. Certain physical evidence, including the firearm in question, was
seized from the apartment in which Newton was staying on January 9,
2001. Newton also made several statements to parole officers at the
time. Newton now moves to suppress the evidence, arguing that the
physical evidence was taken in violation his Fourth Amendment rights, and
that the statements were obtained in violation of his Fifth Amendment
rights under Miranda.
Defendant Sewn Newton is charged with possession of a firearm, having
previously been convicted of three crimes each punishable by imprisonment
for a term exceeding one year and each a violent felony or serious drug
offense. 18 U.S.C. § 922(g)(1), § 924(e)(1), and § 3551 et
seq. Certain physical evidence, including the firearm in question, was
seized from the apartment in which Newton was staying on January 9,
2001. Newton also made several statements to parole officers at the
time. Newton now moves to suppress the evidence, arguing that the
physical evidence was taken in violation his Fourth Amendment rights, and
that the statements were obtained in violation of his Fifth Amendment
rights under Miranda.
On July 23-24, 2001, three parole officers with the New York State
Division of Parole, Newton, and his mother, Shirley Wright, testified at
a suppression hearing. At the conclusion of the hearing, I credited the
accounts of the parole officers. Therefore, I make the following findings
of fact.
At the times relevant to this case, Newton was on parole under the
supervision of the New York State Division of Parole. Tr. of Suppression
Hr'g, July 23-24, 2001 ("Tr.") at 21. When he was released on parole on
March 6, 2000, Newton signed a standard certificate of release in which
he agreed that during his period of supervision, he "will permit his
parole officer to visit him at his residence and/or place of employment
and will permit the search and inspection of his person, residence and
property." Tr. at 21-22. Since his release, Newton has occasionally
stayed as an overnight guest at his mother's apartment. Tr. at 53.
On January 8, 2001, Carole Flot, a senior parole officer, received a
phone call from a social worker at a victims' services organization. Tr.
at 9. The social worker told Flot that she had received a call from
Newton's mother. Tr. at 11. In her call to the social worker, Wright
said that Newton threatened to kill her and her husband, and that he kept
a gun in a box by the door of her home. Tr. at 9. The social worker
added that she had not been able to provide services to Wright and her
husband. Id.
Flot conveyed this information to John Zwaryczuk, a parole officer
working that day. Id. Zwaryczuk then contacted Newton's parole
officer, Barry Davis, and Davis' partner, John White, and informed them
of the allegations against Newton. Tr. at 23. Davis told his superior,
John Contino, about the allegations, and Contino
advised him to conduct a
"safety search." Tr. at 69. Davis, White, and Zwaryczuk decided to visit
Newton at his mother's apartment the next morning. Tr. at 24. They also
contacted the local police precinct and invited a police sergeant and two
officers to accompany them. Id. None of the parole officers contacted
the social worker to discuss the allegations. Tr. at 34.
Early in the morning of January 9, 2001, the three parole officers and
three police officers arrived at Wright's apartment. Tr. at 25-26. After
Davis knocked for several minutes, Newton opened the door dressed only in
his underwear. Tr. at 26, 49, 63. Davis asked Newton to step into the
hallway and turn around. Tr. at 63. Davis then handcuffed Newton, and
told him that he was not under arrest and that the handcuffs were for the
safety of both the officers and Newton. Tr. at 50, 63.
Newton was taken back into the apartment, and sat by the officers in a
chair in the foyer just inside the door. Tr. at 26. Davis asked Newton
where his mother was, and Newton replied she was in the back. Tr. at
76. Zwaryczuk then began to question Newton, asking him if he had any
kind of contraband in the home. Tr. at 26-27. Newton looked at a closed
shoe box on a table behind Zwaryczuk, motioned with his head and body
toward the table, and said, "only what is in the box." Tr. at 27, 63.
Zwaryczuk asked Newton what was in the box, and Newton replied, "a two
and two." Tr. at 27. Zwaryczuk then asked Newton, "What is a two and
two?" and received no answer. Id. Zwaryczuk opened the box and found an
unloaded .22 caliber automatic firearm, a fully loaded magazine, and
several loose rounds. Id. Zwaryczuk opened the box "maybe under a
minute" after the officers entered the apartment. Id.
According to Zwaryczuk, when the gun was found, Newton's parole was
revoked automatically and he became under arrest. Tr. at 29. Newton was
then handed over to one of the police officers to be processed. Tr. at
29. At the apartment, Zwaryczuk gave the box and its contents to White,
who gave it to the police sergeant. Tr. at 45. At no time during
Newton's questioning or arrest at the apartment did any of the parole or
police officers read Newton his Miranda rights. Tr. at 38.
Newton's girlfriend was also present in the apartment when the officers
arrived and searched. Tr. at 61.
Newton seeks to suppress the physical evidence seized by officers, and
all statements he made in response to the parole officers' questions.
Each issue will be addressed separately.
Newton seeks to suppress the evidence seized by the officers, claiming
that the search violated his Fourth Amendment right to be secure from
unreasonable searches and seizures.
The government initially argues that the parole officers were present
in Wright's apartment pursuant to their inherent authority to conduct
home visits of parolees. "To be sure, `home visits' by parole officers
are among the lawful restrictions to which parolees have traditionally
been subjected." United States v. Trzaska, 866 F. Supp. 98, 101-02
(E.D.N.Y. 1994) (citing Diaz v. Ward, 506 F. Supp. 226, 228-29 (S.D.N.Y.
1980)). By signing the certificate of release, Newton agreed to allow
his parole officer to visit him at home.
Newton argues that the parole officers engaged in a search of the
apartment, not a home visit. A home visit is not a search, even though a
visit may result in seizure of contraband in plain view. See Trzaska,
866 F. Supp. at 102. There is a "common sense" distinction between
visits and searches: searches are "an intrusive, probing endeavor," while
home visits are "much more restricted in scope." Diaz, 506 F. Supp. at
228. Furthermore, in Trzaska, the stated purpose of the routine home
visit was to verify the parolee's residence, employment status, and other
indicia of community status.
The parole officers here did not undertake a restricted visit of
Newton. They instead handcuffed Newton, entered the apartment, and
looked for the gun. This "intrusive, probing endeavor" must be
characterized as a search, not a home visit. The question, therefore, is
whether the search was lawful under the Fourth Amendment.
A parolee or a probationer does not generally surrender his Fourth
Amendment right to be secure from unreasonable searches and seizures.
See Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168 (1987)
(probationer's home protected by Fourth Amendment); United States v.
Grimes, 225 F.3d 254, 258 (2d Cir. 2000) (applying Griffin to parolees).
Moreover, as the district court in Grimes noted, a parolee's status is
relevant to the evaluation of what is a reasonable search. See United
States v. Grimes, 67 F. Supp.2d 170, 175 (W.D.N.Y. 1999). That is, a
search that is unreasonable with respect to an individual not on parole
may be reasonable with respect to an individual who is. See id.
In most situations, a search may only be undertaken pursuant to a
warrant supported by probable cause. See Griffin, 483 U.S. at 873, 107
S.Ct. at 3168. However, the Supreme Court has permitted exceptions when
"special needs" beyond the normal need for law enforcement make the
warrant and probable cause requirement impractical. Id. One of these
exceptions is for a state's operation of its probation or parole system.
See id. (probation system); Grimes, 225 F.3d at 258 (applying Griffin to
parole system). "As a result, probationers [and parolees] may be subject
to `a degree of impingement upon privacy that would not be constitutional
if applied to the public at large.'" Id. (quoting Griffin, 483 U.S. at
875, 107 S.Ct. at 3169).
To guarantee a parolee's somewhat diminished Fourth Amendment rights,
these impingements must occur "pursuant to a regulation that itself
satisfies the Fourth Amendment's reasonableness requirement." Griffin,
483 U.S. at 873, 107 S.Ct. at 3168. This formulation is an extension of
the doctrine regarding warrantless administrative searches, in which
"government investigators conducting searches pursuant to a regulatory
scheme need not adhere to the usual warrant or
probable-cause requirements as long as their searches meet `reasonable
legislative or administrative standards.'" Id. (quoting Camara v.
Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727,
1736 (1967)).
Applying this standard to the case at bar therefore requires a
determination of whether the regulations under which Newton's mother's
apartment was searched satisfy the Fourth Amendment's reasonableness
requirement, and whether that search was conducted pursuant to those
Newton seeks to suppress the evidence seized by the officers, claiming
that the search violated his Fourth Amendment right to be secure from
unreasonable searches and seizures.
The government initially argues that the parole officers were present
in Wright's apartment pursuant to their inherent authority to conduct
home visits of parolees. "To be sure, `home visits' by parole officers
are among the lawful restrictions to which parolees have traditionally
been subjected." United States v. Trzaska, 866 F. Supp. 98, 101-02
(E.D.N.Y. 1994) (citing Diaz v. Ward, 506 F. Supp. 226, 228-29 (S.D.N.Y.
1980)). By signing the certificate of release, Newton agreed to allow
his parole officer to visit him at home.
Newton argues that the parole officers engaged in a search of the
apartment, not a home visit. A home visit is not a search, even though a
visit may result in seizure of contraband in plain view. See Trzaska,
866 F. Supp. at 102. There is a "common sense" distinction between
visits and searches: searches are "an intrusive, probing endeavor," while
home visits are "much more restricted in scope." Diaz, 506 F. Supp. at
228. Furthermore, in Trzaska, the stated purpose of the routine home
visit was to verify the parolee's residence, employment status, and other
indicia of community status.
The parole officers here did not undertake a restricted visit of
Newton. They instead handcuffed Newton, entered the apartment, and
looked for the gun. This "intrusive, probing endeavor" must be
characterized as a search, not a home visit. The question, therefore, is
whether the search was lawful under the Fourth Amendment.
A parolee or a probationer does not generally surrender his Fourth
Amendment right to be secure from unreasonable searches and seizures.
See Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 3168 (1987)
(probationer's home protected by Fourth Amendment); United States v.
Grimes, 225 F.3d 254, 258 (2d Cir. 2000) (applying Griffin to parolees).
Moreover, as the district court in Grimes noted, a parolee's status is
relevant to the evaluation of what is a reasonable search. See United
States v. Grimes, 67 F. Supp.2d 170, 175 (W.D.N.Y. 1999). That is, a
search that is unreasonable with respect to an individual not on parole
may be reasonable with respect to an individual who is. See id.
In most situations, a search may only be undertaken pursuant to a
warrant supported by probable cause. See Griffin, 483 U.S. at 873, 107
S.Ct. at 3168. However, the Supreme Court has permitted exceptions when
"special needs" beyond the normal need for law enforcement make the
warrant and probable cause requirement impractical. Id. One of these
exceptions is for a state's operation of its probation or parole system.
See id. (probation system); Grimes, 225 F.3d at 258 (applying Griffin to
parole system). "As a result, probationers [and parolees] may be subject
to `a degree of impingement upon privacy that would not be constitutional
if applied to the public at large.'" Id. (quoting Griffin, 483 U.S. at
875, 107 S.Ct. at 3169).
To guarantee a parolee's somewhat diminished Fourth Amendment rights,
these impingements must occur "pursuant to a regulation that itself
satisfies the Fourth Amendment's reasonableness requirement." Griffin,
483 U.S. at 873, 107 S.Ct. at 3168. This formulation is an extension of
the doctrine regarding warrantless administrative searches, in which
"government investigators conducting searches pursuant to a regulatory
scheme need not adhere to the usual warrant or
probable-cause requirements as long as their searches meet `reasonable
legislative or administrative standards.'" Id. (quoting Camara v.
Municipal Court, 387 U.S. 523, 538, 87 S.Ct. 1727,
1736 (1967)).
This seemingly straightforward analysis is complicated by a preliminary
question: what are the applicable "regulations"? As Newton was a parolee
with the New York State Division of Parole, state law must provide the
appropriate search regulations.*fn2 There are three possibilities.
First, the search may have been conducted pursuant to the New York
State Division of Parole's Policy and Procedures Manual ("Manual"). See
July 23, 2001 Hr'g Ex. B. Item 9405.04 of the Manual provides guidelines
for home visits, searches, and seizures of parolees by parole officers.
See id. Section II of Item 9405.04 specifically provides guidelines for
warrantless searches of parolees. See id. Under Section II.A:
A parole officer may search a releasee for evidence of
a crime or evidence of a violation of any of the
releasee's conditions of parole where the officer has
an articulable reason for conducting the search that
is reasonably related to the circumstances of the
particular case and rationally related to the
officer's duty to supervise the releasee.
Id. Moreover, under Section II.B.4 ("Specific applications . . . Search
of a residence"), "a releasee's residence may be searched only where the
officer has an articulable reason for conducting the search and then only
with the consent of the releasee, or the consent of another adult member
of the household." Id. The Manual also contains specific guidelines
regarding home visits, and paperwork and filing requirements relating to
consent and seizures. Newton assumes that the Manual is the applicable
regulation, and bases his argument on the parole officers' alleged
violations of the Manual's guidelines.
Second, the search may have been conducted pursuant to regulations
governing release conditions of parolees. New York State Division of
Parole regulations mandate that "[a] copy of the conditions of release,
with the addition of any special conditions, shall be given to each
inmate upon his release to supervision." N.Y. Comp. Codes R. & Regs. 9
§ 8003.2 (1995).*fn3
The regulations further state that the
conditions of release are to include: "[a] releasee will permit his
parole officer to visit him at his residence and/or place of employment
and will permit the search and inspection of his person, residence and
property." N.Y. Comp. Codes R. & Regs. 9 § 8003.2(d). The government
claims that the Division of Parole is governed by these regulations.
Finally, the search may have been conducted pursuant to case law
developed by New York courts regarding warrantless searches of parolees.
In People v. Huntley, 43 N.Y.2d 175, 401 N.Y.S.2d 31 (1977), a parolee
who had upon release signed a standard certificate of release authorizing
searches failed to report to two meetings with his parole officer, lied
about his employment status, and received welfare benefits without asking
permission. See id. at 179-80. Armed with a parole violation warrant but
not a search warrant, parole officers searched the defendant's residence
and found bullets, heroin, and cocaine.
The Court of Appeals held that the standard authorization "is not to be
taken as an unrestricted consent to any and all searches or as a blanket
waiver of all constitutional rights to be secure from unreasonable
searches and seizures." Id. at 182. Nevertheless, the court refused to
suppress the evidence, asserting that "whether the action was
unreasonable and thus prohibited by constitutional proscription must turn
on whether the conduct of the parole officer was rationally and
reasonably related to the performance of the parole officer's duty."
Id. at 181. Based on the parolee's demonstrated unreliability, the court
applied this standard and held the search to be reasonably and rationally
related to the parole officer's duty to detect and prevent parole
violations. See id. at 181-82. The government cites Huntley for the
proposition that warrantless searches of parolees are valid if they are
rationally and reasonably related to the performance of the parole
officer's duty.
There are significant differences between the three potentially
relevant "regulations." Huntley merely requires that the search be
rationally and reasonably related to the performance of the parole
officer's duty. No consent of the parolee or other inhabitant of the
residence is required. The Manual requires both consent and an
articulable reason for conducting the search. The release conditions
regulations on their face appear to require nothing more than the
signature of the parolee on the standard certificate of release. They do
not specifically contain a reasonableness standard.*fn4
It may seem counterintuitive to regard case law such as Huntley as a
"regulation" pursuant to which a search was conducted, but that was the
precise holding of the Second Circuit in Grimes. There, a parolee tested
positive for drugs, failed to comply with conditions of his drug treatment
program, failed to attend a required education program, and lied to his
parole officer about his contact with police. Grimes, 225 F.3d at 256.
When the parole officer learned of Grimes' dishonesty regarding a run-in
with police, the officer obtained a parole violation warrant from her
and went to Grimes' residence with five other parole officers.
When the officers arrived, Grimes' sister locked the door to the house,
told the officers that Grimes would soon come out (but that they would
not be allowed inside), and threatened to set a Rottweiler on them if
they tried to enter. Over the next few minutes, the officers heard people
walking around upstairs, loud thumping, and loud music. When Grimes
finally emerged, he tried to squeeze out the front door and prevent the
officers from entering. The officers, concerned there could be someone
inside with a gun, briefly forced the door open. While Grimes was being
arrested, Grimes' sister slammed the door shut. Eventually, the police
arrived and arrested Grimes' sister for obstructing governmental
administration. The parole officers searched Grimes' bedroom, and found
evidence of crimes. Grimes' sister refused to give the parole officers
permission to search the entire house, but Grimes' mother, the "main
renter" of the house, did consent to a search when she returned. In the
search, the police found additional evidence of crimes. At trial, Grimes
moved to suppress the evidence seized.
Assessing "New York's search regulations for parolees `as [they have]
been interpreted by state corrections officials and state courts,'" the
court turned to Huntley. See Grimes, 225 F.3d at 258 (quoting Griffin,
483 U.S. at 875, 107 S.Ct. at 3169). It first held that "the special
needs attendant to the operation of New York's parole system" justified
the departure from traditional Fourth Amendment principles. Id. The
court then quoted the standard articulated in Huntley, and found that
there was "no evidence that `New York State's rules specified in
Huntley, or the searches conducted in this case, are inconsistent with
the Fourth Amendment.'" Id. (quotation unattributed).
In a footnote, the court rejected the defendant's argument that the
search was not done pursuant to any state regulation. See id. at 258 n.
3. Instead, the court observed that the Griffin opinion did not draw a
distinction between "legislatively — and judicially — crafted
rules." Id. (citing United States v. Giannetta, 909 F.2d 571, 575 (1st
Cir. 1990)). The court added that it could "see no reason to
distinguish" between legislative and judicial rules for these purposes.
Id. The critical question, the court concluded, is whether the
regulation contains a reasonableness requirement, not which branch of
government generated the rule. See id. This view is supported to a
degree by post-Griffin decisions in which intermediate-level New York
appellate courts looked only to Huntley when parolees challenged
warrantless seaches, and did not mention the Manual or standard consent
forms. See People v. Brown, 276 A.D.2d 635, 714 N.Y.S.2d 887 (2d Dep't
2000); People v. Nelson, 257 A.D.2d 765, 683 N.Y.S.2d 656 (3d Dep't
Following Grimes' application of the Huntley "regulation," the search
of Wright's apartment therefore was lawful if it was rationally and
reasonably related to the performance of the parole officer's duty.
Included in that duty is the obligation to detect and prevent parole
violations so as to protect the public from the commission of further
crimes. See Huntley, 43 N.Y.2d at 181, 401 N.Y.S.2d at 34. The parole
officers received information from Wright's social worker that Newton had
threatened Wright and her husband, and that he was
keeping a gun in the
house. Searching Wright's apartment based on this information clearly
was rationally and reasonably related to the parole officers' duty to
detect the possession of a firearm in violation of Newton's parole and to
protect Wright and her husband. The evidence seized during the search
therefore should not be suppressed under this analysis.
However, despite the unmistakable holding in Grimes, there is some
reason to question the result. Most importantly, the court did not have
an opportunity to consider the Manual. The district court, which also
used Huntley as the relevant regulation, specifically noted that the
Manual was not introduced into evidence and thus did not consider it in
making its decision. See Grimes, 67 F. Supp.2d at 176 n. 4. The
district court also stated inaccurately that Huntley was incorporated
into the Manual's Section II.A. Id. Unlike the Manual, Huntley does not
require the consent of the parolee or of another adult member of the
In addition, the case relied on by the Second Circuit for the
proposition that there is no difference between "legislatively — and
judicially — crafted rules" is not precisely on point. United
States v. Giannetta involved a condition of probation narrowly tailored
by a judge to the circumstances of an individual case after careful
consideration, not a general rule governing searches promulgated by a
court. See Giannetta, 909 F.2d at 575. The court there concluded that
the guidance and constraints of such a narrowly tailored condition are
comparable to a legislative or administrative regulatory framework. Id.
The court in Grimes did not discuss whether a general judicial rule
offers the same degree of guidance and constraints. On the other hand,
it is not clear that federalism permits federal courts to question
whether otherwise constitutional search and seizure rules become improper
because they are developed by the courts rather than adopted by the
legislature. State separation of powers issues do not generally raise
constitutional questions.
Accordingly, it is appropriate to consider whether the evidence seized
in the search of Wright's apartment should be suppressed under either of
the other potentially applicable regulations. Newton argues that the
Manual is the relevant regulation, and that no consent was given to
search the apartment. Newton also asserts that the certificate of release
form he signed does not give parole officers "carte blanche" to search
his residence at any time. Instead, he claims that the officers needed
contemporaneous consent to search. According to Newton, the significance
of the certificate of release is that if the parolee refuses to grant
parole officers permission to search his residence, the only consequence
is that the parolee's parole should be revoked.
Newton correctly observes that the New York Court of Appeals held in
Huntley that the standard authorization to search a parolee's residence
included in the certificate of release "is not to be taken as an
unrestricted consent to any and all searches or as a blanket waiver of
all constitutional rights to be secure from unreasonable searches and
seizures." Huntley, 43 N.Y.2d at 182, 401 N.Y.S.2d at 35. However, this
statement does not render the consent given by the certificate of release
entirely inoperative. Rather, New York courts have strongly implied that
the standard certificate of release means that the parole officers do not
need further consent to conduct searches that are reasonably and
rationally related to their duty. See id. at 182-183, 401 N.Y.S.2d at 35
(the authorization "merely parallels, by way of
confirmation, the right
[of the parole officer] to conduct searches that are rationally and
substantially related to the performance of his duty"); see also People
v. Mackie, 77 A.D.2d 778, 779, 430 N.Y.S.2d 733, 735 (4th Dep't 1980)
("The authorization is not an unrestricted consent to any and all
searches and does not obviate a showing by the parole officer that the
search was rationally related to his duty to detect and prevent parole
This view is strongly supported by courts outside of New York that have
carefully considered the issue. Most of these courts have held that the
consent to search signed by a parolee upon his release allows parole
officers to perform searches based on reasonable suspicion. See Cherry
v. State, 302 Ark. 462, 466-67, 791 S.W.2d 354, 356-57 (1990) (signed
consent valid because it contains elements that insure a search will be
reasonable); Commonwealth v. Williams, 547 Pa. 577, 588-89, 692 A.2d 1031,
1036-37 (1997) ("the parolee's signature acts as acknowledgment that the
parole officer has a right to conduct reasonable searches of his residence
listed on the parole agreement without a warrant"); Pena v. State,
792 P.2d 1352, 1357 (Wyo. 1990) (despite signed consent to search at any
time, parolee still entitled to Fourth Amendment mandate that the search
be reasonable); see also People v. Reyes, 19 Cal.4th 743, 760-61,
968 P.2d 445, 455-56 (1998) (listing additional state cases, statutes,
and administrative regulations) (concurring and dissenting opinion).*fn6
In addition, the Supreme Court recently agreed with the reasoning of
these cases, albeit in the context of a signed consent form imposed as a
condition of probation. In United States v. Knights, ___ S.Ct. ___,
2001 WL 1560882 (Dec. 10, 2001), the defendant signed a probation order
that included the condition that he would "[s]ubmit his . . . person,
property, place of residence, vehicle, personal effects, to search at any
time, with or without a search warrant, warrant of arrest, or reasonable
cause by any probation officer or law enforcement officer." Id. at *2.
The Court held that by agreeing to the condition, the defendant's
reasonable expectation of privacy was significantly diminished. Id. at
*4. Therefore, the balance between his privacy interests and the
government's interests in rehabilitation and protecting society from
future criminal violations required "no more than reasonable suspicion to
conduct a search of this probationer's house." Id. at *5. In short, the
Court concluded that the police only need to have reasonable suspicion to
search a probationer's residence or property if the probationer
previously consented to searches upon release. While the circumstances in
Knights are not precisely analogous to those involving Newton, the
analysis of the aforementioned cases comports with the principle
articulated by the Supreme Court.
Newton's contention that a parolee's certificate of release does not
authorize a search of the parolee's residence, but is instead a kind of
contract under which a parolee's failure to contemporaneously consent to
a search results only in a parole violation, has no merit and virtually
no applicable support. As one New York
court held, a parolee's signed
certificate of release "expressly consents to a search of his person or
residence as a condition of his parole." State ex rel. McNeil v. New
York State Bd. of Parole, 87 Misc.2d 497, 501 (N.Y.Sup.Ct. 1976). In
support of Newton's position, a handful of intermediate-level appellate
courts in Oregon have held that a probationer's refusal to submit to a
search under the terms of his probation does not give the probation
officer the authority to conduct a warrantless search. See State v.
Davis, 133 Or. App. 467, 473, 891 P.2d 1373, 1378 (1995); State v.
Hindman, 125 Or. App. 434, 866 P.2d 481, 482 (1993). But "Oregon stands
alone in their interpretation." State v. James, 963 P.2d 1080, 1083
(Alaska Ct. App. 1998) (citing cases from other jurisdictions). Nor does
language in Trzaska support Newton's assertion. There, federal probation
officers searched a parolee's residence without a warrant or his
contemporaneous consent. Trzaska, 866 F. Supp. at 101. The court
observed that "[w]hile the refusal of the parolee to consent may
constitute grounds for violation of his parole, the Probation Officers
lacked the `seizure power' of other law enforcement officers." Id. at
104 (quoting United States v. Wilson, 959 F.2d 12, 15 (2d Cir. 1992)).
However, Trzaska is inapposite because the parolee did not consent to
searches upon his release, as Newton did. Trzaska, 866 F. Supp. at 104.
The search of Newton's mother's apartment was therefore valid under
either the Manual or the release conditions regulations if Newton signed
the certificate of release and the search was based on reasonable
suspicion. Newton did sign the certificate of release, and, as discussed
above, the social worker's report that Newton threatened his mother and
step-father and kept a gun in the apartment gave the parole officers
reasonable suspicion that Newton was violating the terms of his parole.
Therefore, applying either the Manual or the release conditions
regulations, the search of the apartment was pursuant to a regulation
that satisfied the Fourth Amendment's reasonableness requirement, and the
evidence should not be suppressed.
Newton also seeks to suppress statements he made in response to the
officers' questions in the absence of Miranda warnings. The Fifth
Amendment provides that "no person . . . shall be compelled in any
criminal case to be a witness against himself." It is well settled that
if the police take a suspect into custody and then ask him questions
without informing him of his familiar Miranda rights, his responses
cannot be introduced into evidence to establish his guilt. See Dickerson
v. United States, 530 U.S. 428, 431-32, 120 S.Ct. 2326, 2329-30 (2000)
(upholding Miranda); Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct.
1602, 1612 (1966); United States v. Mitchell, 966 F.2d 92, 97-98 (2d
Cir. 1992). Newton argues that the parole officers
placed him in custody
and then interrogated him without informing him of his Miranda rights.
Therefore, Newton claims that any statements he made during the
interrogation must be suppressed.
The first question that must be answered is whether Newton was is
custody for the purposes of Miranda when Officer Zwaryczuk questioned
him. If Newton was not in custody, any statements he made are admissible
even if he was not given the Miranda warnings.
At its core, Miranda seeks to deal with those situations in which a
person suspected or accused of a crime might feel compelled by police to
incriminate himself. See Miranda, 384 U.S. at 467, 86 S.Ct. at 1624. A
suspect placed in the "coercive environment," Oregon v. Mathiason,
429 U.S. 492, 495, 97 S.Ct. 711, 714 (1977), of custodial interrogation
faces "compelling pressures which work to undermine the individual's will
to resist and to compel him to speak where he would not otherwise do so
freely." Miranda, 384 U.S. at 467, 86 S.Ct. at 1624. Moreover, these
pressures may lead the subject of the questioning to believe "that he has
no choice but to submit to the officer's will and to confess." Minnesota
v. Murphy, 465 U.S. 420, 433, 104 S.Ct. 1136, 1145 (1984). "The coercion
inherent in custodial interrogation derives in large measure from an
interrogator's insinuations that the interrogation will continue until a
confession is obtained." Id. at 433, 104 S.Ct. at 1145.
These concerns led the Court in Miranda to define "custodial
interrogation" as "questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way." Miranda, 384 U.S. at 444, 86
S.Ct. at 1612. The Court subsequently explained that "the ultimate
inquiry is simply whether there is a `formal arrest or restraint on
freedom of movement' of the degree associated with a formal arrest."
California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520 (1983)
(quoting Mathiason, 429 U.S. at 495, 97 S.Ct. at 714). This test is based
on the objective circumstances of the interrogation, not on the
subjective views of either the interrogating officers or the person being
questioned. See Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct.
1526, 1529 (1994).
the test used in determining whether a defendant was
in custody is an objective one that (a) asks whether a
reasonable person would have understood herself to be
subjected to restraints comparable to those associated
with a formal arrest, and (b) focuses upon the
presence or absence of affirmative indications that
the defendant was not free to leave. An accused is in
custody when, even in the absence of an actual
arrest, law enforcement officials act or speak in a
manner that conveys the message that they would not
permit the accused to leave.
Tankleff v. Senkowski, 135 F.2d 235, 243-44 (2d Cir. 1998); see also
United States v. Kirsh, 54 F.3d 1062, 1067 (2d Cir. 1995) (internal
quotations omitted); Mitchell, 966 F.2d at 98; Campaneria v. Reid,
891 F.2d 1014, 1021 n. 1 (2d Cir. 1989). An earlier description of the
test focused on whether the "questioning was conducted in custodial
settings that have inherently coercive pressures that tend to undermine
the individual's will to resist and to compel him to speak." United
States v. Morales,
834 F.2d 35, 38 (2d Cir. 1987). Although this
formulation was dictum, Second Circuit courts continue to cite it as
well. See Tankleff v. Senkowski, 135 F.3d at 244; Kirsh, 54 F.3d at
1067; Mitchell, 966 F.2d at 98.
There are, it is true, few people who would feel free
to walk away from a police officer who stopped to
question them. Some, hopefully most, would feel
restrained out of respect for an office of the law who
is, after all, their servant and protector. Others,
unfortunately, would feel restrained by fear of a
police officer.
People v. Rodney P., 21 N.Y.2d at 11, 286 N.Y.S.2d at 234. In my view,
the Morales formulation is the appropriate approach to determine whether
a person is in custody for Miranda purposes.
The classic coercive environment of a custodial setting in which there
are inherently coercive pressures that tend to undermine the individual's
will to resist and to compel him to speak is the station-house
interrogation at issue in Miranda itself. See Miranda, 384 U.S. at
456-57, 86 S.Ct. at 1618. The Court also noted that its decision was not
intended to apply to "[g]eneral on-the-scene questioning as to the facts
surrounding a crime or other general questioning of citizens in the
fact-finding process." Id. at 477, 86 S.Ct. at 1629; see also Beckwith
v. United States, 425 U.S. 341, 96 S.Ct. 1612 (1976) (no custody when
defendant interviewed at home by IRS agents); Mitchell, 966 F.2d at 99
(no custody when defendant interviewed at home by EPA agents). Despite
this language, courts have found suspects to be in custody in settings
outside of the police station. See, e.g., Orozco v. Texas, 394 U.S. 324,
89 S.Ct. 1095 (1969) (custody when defendant in his bedroom surrounded by
four police officers at 4 a.m.); New York v. Quarles, 467 U.S. 649, 104
S.Ct. 2626 (1984) (custody when defendant in supermarket handcuffed and
surrounded by police officers).
The Court held that an ordinary traffic stop does not result in custody
for the purposes of Miranda, analogizing the custody aspects of a traffic
stop to the Fourth Amendment seizure aspects of a stop under Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968). See id. at 439-440, 104 S.Ct. at
3150. Under Terry, a police officer who lacks probable cause but whose
observations lead him to reasonably suspect that a particular person has
committed, is committing, or is about to commit a crime may briefly
detain that person to investigate the circumstances that provoked the
suspicion, and this detention does not subject that person to an
unreasonable seizure under the Fourth Amendment. See id. (quoting United
States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580
(1975)). These stops must be reasonably related in scope to their
justification, meaning that the officer may ask the detainee a moderate
number of questions regarding his identity and the officer's suspicions,
and that the detainee must be released unless his answers provide the
officer with probable cause for arrest. See id. at 439-40, 104 S.Ct. at
3150. "The comparatively nonthreatening character of detentions of this
sort explains the absence of any suggestions in our opinions that Terry
stops are subject to the dictates of Miranda." Id. at 440, 104 S.Ct. at
3150.*fn9 The rationale of Berkemer recently was reviewed in detail by
the Second Circuit in Cruz, 255 F.3d at 82-84 (concluding that a state
court did not unreasonably apply "somewhat uncertain" precedent when it
denied a writ of habeas corpus for a defendant who was followed by
police, stopped after getting off a subway, then questioned about a murder
without having been administered the Miranda warnings).
In addition, officers may use a degree of restraint during a Terry stop
to neutralize the threat of physical harm without the stop becoming an
arrest, although the permissible amount depends on a wide range of
factors. See Oliviera v. Mayer, 23 F.3d 642, 645-46 (2d Cir. 1994)
(listing factors); United States v. Perea, 986 F.2d 633, 644 (2d Cir.
1993). This is because Terry stops are in part justified by:
the need for law enforcement officers to protect
themselves and other prospective victims of violence
in situations where they may lack probable cause for
an arrest. When an officer is justified in believing
that the individual whose suspicious behavior he is
investigating at close range is armed and presently
dangerous to the officer or to others, it would appear
to be clearly unreasonable to deny the officer the
power to take the necessary measures to determine
whether the person is in fact carrying a weapon and to
neutralize the threat of physical harm.
Terry, 392 U.S. at 24, 88 S.Ct. at 1881; see also United States v.
Alexander, 907 F.2d 269, 272 (2d Cir. 1990) (during a Terry stop, a "law
enforcement agent, faced with the possibility of danger, has a right to
take reasonable steps to protect himself and an obligation to ensure the
safety of innocent bystanders, regardless of whether probable cause to
arrest exists"). In particular, when police officers have a reasonable
basis to believe that the suspect poses a threat, they have been
permitted to draw their guns and handcuff a suspect during a Terry stop
without converting it into an arrest. See Oliviera, 23 F.3d at 646
(listing cases); Perea, F.3d at 645. Therefore, based on Berkemer and
its progeny, a person temporarily detained during a Terry stop is not
necessarily in custody for the purposes of Miranda, even if he has been
handcuffed or otherwise restrained. See, e.g., United States v. Prince,
157 F. Supp.2d 316, 324-25 (D.Del. July 31, 2001) (no custody for
Miranda purposes during Terry stop where suspect was handcuffed, placed
in police car, and told she was not under arrest, but the officers were
justified in concern for their safety).
Similarly, when the occupants of a premises being searched by the
police are detained during the search, they have not been seized for
Fourth Amendment purposes during the search. See Michigan v. Summers,
452 U.S. 692, 704-05, 101 S.Ct. 2587, 2595 (1981) (no unreasonable
seizure when defendant was encountered on steps outside his home and held
while police executed a search warrant); Rivera v. United States,
928 F.2d 592, 606 (2d Cir. 1991) ("Absent special circumstances, the
police of course have the authority to detain occupants of premises while
an authorized search is in progress."). Rather, their detention is
analogous to the detention of suspects during Terry stops. Summers, 452
U.S. at 698-701, 101 S.Ct. at 2592-93; see also United States v.
Jaramillo, 25 F.3d 1146, 1151-52 (2d Cir. 1994) (summarizing cases to
mean that Terry stops and patdowns are
permitted "with respect to persons
who own, occupy, or enter upon private premises on which the officers
have the right to conduct a search or make a security check."). During
execution of a search warrant, detention of the occupants of the premises
being searched is justified to: (1) minimize the risk of harm to the
officers; (2) prevent flight in the event that incriminating evidence is
found; and (3) facilitate the orderly completion of the search. See
Summers, 452 U.S. at 702-03, 101 S.Ct. at 2594. As with a Terry stop, a
Summers-type detention could become a seizure, in this situation through
"special circumstances, or possibly a prolonged detention." Id. at 705
n. 21, 101 S.Ct. at 2595. Also similar to Terry stops, even holding the
detainee at gunpoint or in handcuffs does not necessarily transform a
detention during the execution of a search warrant into an unlawful
seizure. See, e.g., United States v. Fountain, 2 F.3d 656, 666 (6th
Cir. 1993), vacated in part on other grounds, 953 F. Supp. 836
(E.D.Mich. 1996) (occupant not unlawfully seized when agents handcuffed
him during execution of search warrant on his residence); Crosby v.
Hare, 932 F. Supp. 490, 493 (W.D.N.Y. 1996) (occupant first held naked
and at gunpoint, then placed in handcuffs while dressed during execution
of search warrant not unlawfully seized); Howard v. Schoberle,
907 F. Supp. 671, 677 (S.D.N.Y. 1995) ("[T]he decision to handcuff
Plaintiffs after the police entered the apartment was undeniably
In Summers, the Court relied in part on the fact that the search was
pursuant to a valid warrant issued by neutral magistrate. Summers, 452
U.S. at 701-02, 101 S.Ct. at 2593-94. However, the Court explicitly
refused to preclude the possibility "that comparable police conduct may
be justified by exigent circumstances in the absence of a warrant." Id.
at 702 n. 17, 101 S.Ct. at 2594. Language in subsequent cases indicates
that Summers applies to all valid searches, not just those conducted
pursuant to a warrant. See Rivera, 928 F.2d at 606 (police may detain
occupants while an "authorized search" is in progress); Jamarillo, 25
F.3d at 1152 (summarizing cases to mean that police may conduct patdowns
of people on premises "on which the officers have the right to conduct a
search or make a security check.").
Although the Supreme Court has not considered whether people detained
during a valid search of a premises are in custody for Miranda purposes,
the logic of Berkemer should apply equally to both Terry stops and
Summers-type detentions. Indeed, at least three circuits have reached
this conclusion. For example, in United States v. Burns, 37 F.3d 276
(7th Cir. 1994), a woman was detained in her hotel room while DEA agents
and police officers searched the room pursuant to a warrant. During the
search, one of the agents asked Burns several questions without
administering the Miranda warnings. Id. at 277-78. Citing Terry,
Summers, and Beheler, the court held that "a suspect who is detained
during the execution of a search warrant has not suffered a restraint on
freedom of movement of the degree associated with formal arrest and is
thus not in custody for the purposes of Miranda," and refused to exclude
the statements. Id. at 281 (quotation marks omitted). The court noted
that like Terry stops, the execution of a search warrant is comparatively
non-threatening, often short in duration, and "`surely less intrusive
than the search itself,'" Id. (quoting Summers, 452 U.S. at 701, 101
S.Ct. at 2593). The court also noted that "detention in a person's own
residence or hotel room `could only add minimally to the public stigma
associated with the search itself and would involve neither the
inconvenience not the indignity associated with a compelled visit to
the police station.'" Id. (quoting Summers, 452 U.S. at 702, 101 S.Ct. at
2594). The Fifth and Tenth Circuits have reached similar conclusions.
See United States v. Fike, 82 F.3d 1315, 1324-26 (5th Cir. 1996),
overruled in part on other grounds, United States v. Brown, 161 F.3d 256,
259 n. 7 (5th Cir. 1998); United States v. Ritchie, 35 F.3d 1477, 1485
(10th Cir. 1994). But see United States v. Morales, 611 F. Supp. 242,
244045 (S.D.N.Y. 1985), rev'd in part on other grounds, 788 F.2d 883 (2d
Cir. 1986) (holding defendant in custody and rejecting application of
Summers and Berkemer when police detained him in the premises during a
valid search). Using the same rationales, the Seventh Circuit also held
that a person held and questioned during a valid but warrantless search
was not in custody for Miranda purposes. See United States v. Saadeh,
61 F.3d 510, 519-20 (7th Cir. 1994).*fn10
These decisions and Berkemer follow from Miranda's core concern that
the police will use coercive environments and psychological tactics to
compel subjects of questioning to confess, especially in the
station-house. Detention during the execution of a search warrant or
during a traffic stop does not usually generate such a coercive
environment. The detention is normally fairly brief and the questioning
usually is also limited in scope and duration. In short, the pressures
during the detention are not likely to lead the subject to believe "that
he has no choice but to submit to the officer's will and confess."
Minnesota v. Murphy, 465 U.S. at 433, 104 S.Ct. at 1145.
Applying these principles to the situation at bar, Officer Zwaryczuk's
questioning of Newton was not a custodial interrogation. First, the
circumstances of the questioning of Newton fall within the Fifth,
Seventh, and Tenth Circuit precedents that found no custody when law
enforcement officers detained an occupant of the residence during a valid
search. As discussed above, the parole officers here arrived to conduct
a valid search under Griffin and Grimes. As in Summers, the officers
understandably restrained Newton to protect themselves, prevent flight,
and facilitate the search. Nor did putting Newton in handcuffs transform
his detention to an unreasonable seizure. Following Burns, Saadeh, Fike,
and Ritchie, Newton was not in custody for Miranda purposes while the
officers conducted the search. Accordingly, his statements in response
to Zwaryczuk's questions should not be suppressed even though he had not
been read his Miranda rights.
Moreover, the core concerns of Miranda were not implicated in Officer
Zwaryczuk's questioning of Newton. While there were indications that
Newton was not free to leave, a reasonable person in his position also
would not have felt placed in a coercive environment in which he has no
choice but to submit to the parole officer's will and confess. This
conclusion is supported by an analysis of the factors courts have used to
determine whether an individual was in custody. See Tankleff v.
Senkowski, 135 F.3d at 243 (in determining whether a suspect was in
custody, courts "look at all the circumstances surrounding the
First, Newton was at home, not in the station-house. As discussed
above, the court in Miranda noted that its decision was not intended to
apply to general on-the-scene questioning. See Miranda, 384 U.S. at
456-57, 86 S.Ct. at 1618.
Moreover, "courts are much less likely to find
the circumstances custodial when the interrogation occurs in familiar or
at least neutral surroundings." 2 Wayne R. LaFave and Jerold H. Israel,
Criminal Procedure § 6.6(e), at 532 (3d ed. 1999). Accordingly,
Miranda rarely applies to an interrogation at a suspect's home. "Lower
courts . . . almost universally hold that questioning in a suspect's home
is not custodial because individuals in a familiar environment are less
likely to be intimidated by law enforcement officers." United States v.
Rakowski, 714 F. Supp. 1324, 1334 (D.Vt. 1987); see also Mitchell, 966
F.2d at 99 (no custody when a suspect was interviewed at his home by EPA
agents). In a familiar environment such as his own home, a suspects is
less likely to be susceptible to many of the psychological ploys
discussed in Miranda. See Minnesota v. Murphy, 465 U.S. at 433, 104
S.Ct. at 1145.
These factors are obviously counteracted by the fact that Newton was in
handcuffs while being questioned. Being placed in handcuffs clearly is a
restraint associated with formal arrest and is often a key in determining
if a suspect is in custody. See, e.g., Kirsh, 54 F.3d at 1067-68
(absence of handcuffs a factor in determining that the suspect was not in
custody); United States v. Henley, 984 F.2d 1040, 1042 (9th Cir. 1993)
(suspect in custody when handcuffed, placed in the back of a police car,
and told he was not under arrest); United States v. Smith, 3 F.3d 1088,
1098 (7th Cir. 1993) (defendant in custody when handcuffed, told to sit
in a specific place in the grass by the side of the road, and not told
whether he was under arrest). However, this factor alone is not
dispositive, especially in situations in which officers have concern for
their safety. See Prince, 157 F. Supp.2d at 324-25 (no custody when
suspect in handcuffs in police car
because "the use of firearms,
handcuffs, and other forceful techniques does not necessarily transform
an investigative detention into a full custodial arrest"); United States
v. Pichardo, 1992 WL 249964, at *1-2, 8 (S.D.N.Y. Sept. 22, 1992) (no
custody when suspect in his underwear initially forced to the floor at
gunpoint, then questioned a few minutes later); see also United States
v. Cota, 953 F.2d 753, 756, 758-59 (2d Cir. 1992) (no custody when
suspect initially placed in handcuffs at gunpoint, then questioned after
handcuffs removed and she willingly followed police to the
station-house). In addition, as discussed above regarding Terry stops
and Summers-type detentions, being in handcuffs or a comparable degree of
restraint does not necessarily result in an unreasonable seizure under
the Fourth Amendment.
Courts also often consider the number of officers present in
determining if the suspect was in custody. See 2 LaFave and Israel,
supra, § 6.6(f), at 539-40. This factor cannot be analyzed here
because it is unclear how many officers were around Newton when he was
being questioned. There were three parole officers and three police
officers in Newton's mother's apartment, but there is contradictory
testimony as to whether the officers went with Davis to the back of the
apartment or were standing around Newton as Zwaryczuk questioned him.
Looking at all the circumstances, I conclude that Newton was not in
custody because the questioning was not conducted in a setting in which
there were the kinds of coercive pressures that would have undermined his
will to resist and compelled him to speak. The words and acts of the
officers undoubtedly sent Newton mixed messages about whether he was free
to leave, but a reasonable person in Newton's position would not have
felt that he had no choice but to submit to Zwaryczuk's will and
confess. Again, this conclusion comports both with Miranda's core concern
regarding coercive environments, and with the holdings that individuals
detained during a valid search are not in custody.
b. "Public Safety" Exception
Although I have concluded that Newton was not in custody during his
questioning, even if this conclusion were incorrect, his responses are
still admissible. The government assumes and Newton argues that Newton
was in custody, and in most situations, this conclusion would result in
the exclusion of any of Newton's responses to the parole officers'
questions. However, the government argues that the questioning of Newton
falls within the "public safety" exception to the normal requirements
under Miranda carved out by the Supreme Court in New York v. Quarles,
467 U.S. 649, 104 S.Ct. 2626 (1984). In Quarles, a woman told two police
officers on patrol she had just been raped and that the perpetrator had
entered a nearby supermarket. She gave the officers a detailed
description of the man and advised them that he was carrying a firearm.
After they entered the supermarket, the officers saw a man who fit the
description who then fled toward the back of the store. The officers
pursued the man, quickly apprehended him, and frisked him. No gun was
found, but the officers observed that the suspect was wearing an empty
holster. An officer handcuffed the suspect and, without giving the
Miranda warnings, asked him where the gun was. The man "nodded in the
direction of some empty cartons and
responded, `the gun is over there.'"
Id. at 652, 104 S.Ct. at 2629. The officers searched the empty cartons
and found a firearm. At that point, the officers notified the suspect he
was under arrest and read him the Miranda warnings. Quarles moved to
suppress the statements and the gun.
The Court held that "on these facts there is a `public safety'
exception to the requirement that Miranda warnings must be given before a
suspect's answers may be admitted into evidence." Id. at 655, 104 S.Ct.
at 2631. Under the exception, when officers ask "questions necessary to
secure their own safety or the safety of the public," the responses of a
suspect may be admitted even if the Miranda warnings have not been
administered. Id. at 659, 104 S.Ct. at 2633. The officers in Quarles had
"every reason to believe" the gun was concealed somewhere in the
supermarket. Id. at 657, 104 S.Ct. 2632. It therefore posed a danger to
the public and the police because "an accomplice might make use of it
[or] a customer or employee might later come upon it." Id.
The limits of Quarles' "public safety" exception have not been
precisely spelled out. The Supreme Court in Quarles notably described its
holding as a "narrow exception to the Miranda rule." Id. at 658, 104
S.Ct. at 2632. In addition, by reaffirming its earlier holding in Orozco
v. Texas, 394 U.S. 324, 89 S.Ct. 1095 (1969),*fn12 the Court indicated
that an interrogation about a gun must "relate to an objectively
reasonable need to protect the police or the public from any immediate
danger associated with the weapon." Quarles, 467 U.S. at 659 n. 8, 104
S.Ct. at 2633 (emphasis added). If there is no immediate danger, the
Miranda rule should apply, not the Quarles exception. See United States
v. Mobley, 40 F.3d 688, 693 (4th Cir. 1994). The Second Circuit has had
few opportunities to examine the "public safety" exception, applying it
only in a case where the risks to the public were even greater than they
were in Quarles. See United States v. Khalil, 214 F.3d 111 (2d Cir.
2000) (refusing to exclude responses by an accused terrorist to police
questions about a bomb in the apartment that could have exploded before
it could be disarmed); see also United States v. Anderson, 929 F.2d 96
(2d Cir. 1991) (distinguishing Quarles because suspect had already been
given the Miranda warnings). Quarles and Khalil show that, at a
minimum, the danger to the police or the public must be immediate and
serious for the "public safety" exception to apply.
Other circuits and district courts have examined Quarles in more
detail, and their decisions provide additional guidance. Moreover,
several cases have fact patterns analogous to the case at bar. In
Mobley, a group of eight FBI agents executed an arrest warrant on the
defendant at his apartment. He answered the door naked, and was
immediately handcuffed. Several agents performed a security sweep of the
apartment and found no one else present. Mobley was allowed to get
dressed, and on the way out an agent asked him if there was anything in
the apartment, such as a weapon, that could be a danger to the
agents.*fn13 The court distinguished Quarles,
noting that Mobley was encountered naked, and that "by the time he
was arrested, the FBI had already made a security sweep of his premises,
and they had found that he was the sole individual present, and that the
apartment was a residence for Mobley alone." Id. at 693. Based
on these facts, the court concluded that no "extraordinary circumstances"
prompted the agent's question, and the "public safety" exception did not
apply. Id.
In United States v. Williams, 181 F.3d 945 (8th Cir. 1999), six police
officers executed a search warrant on the defendant at his apartment.
The officers gained entry to the apartment using a "flash-bang" device
designed to distract anyone inside by creating loud noise and smoke. The
officers entered the apartment, found Williams lying on a bed, and
immediately placed him in handcuffs. Without giving the Miranda
warnings, one officer asked Williams, "Is anything we need to be aware
of?" Williams responded by stating there was a gun in the closet. On
Williams' motion to suppress the statement, the court applied the "public
safety" exception. Id. at 953. Even though Williams was handcuffed, the
court concluded that "the officers could not have known if any armed
individuals were present in the apartment or preparing to enter the
apartment within a short period of time" or "whether other hazardous
weapons were present in the apartment that could cause them harm if they
happened upon them unexpectedly or mishandled them in some way." Id. at
In Mobley and Williams, the suspect was handcuffed and thus did not
himself pose a danger to the public or the police. What distinguishes
Williams from Mobley is that in Williams the officers had not yet secured
the residence when the suspect was questioned. The officers therefore
had valid safety concerns, since other people may have been in the
residence who could have posed a threat to the officers. On the other
hand, the officers in Mobley had already conducted a safety sweep, and
thus had no reasonable safety concerns. Therefore, these cases indicate
that the "public safety" exception applies when officers have not had the
opportunity to search and secure the residence of a handcuffed suspect.
District court cases from this circuit and other circuits support this
conclusion. See United States v. Jones, 154 F. Supp.2d 617 (S.D.N.Y.
2001) ("public safety" exception applies when suspect is in handcuffs but
only part of the apartment has been searched); United States v. Dodge,
852 F. Supp. 139 (D.Conn. 1994) (exception applies when suspect is
handcuffed but an accomplice could have been in the residence and quickly
assembled a bomb); United States v. Chan, 901 F. Supp. 480 (D.Mass. 1995)
(exception applies when defendant was in handcuffs but others may have
been present in the apartment). The conclusion that the "public safety"
exception applies when officers have not had the opportunity to search
and secure the residence of a handcuffed suspect also comports with the
explanation in Quarles that public safety was endangered because an
accomplice might have used the defendant's gun.*fn14
Finally, these cases indicate that the authorities must have some real
basis to believe that weapons are present. Giving the police an
automatic right to interrogate suspects based on the mere possibility
that firearms are present would allow the exception to swallow the rule.
See Jones, 154 F. Supp.2d at 628-29. As the Fourth Circuit noted,
"[a]bsent other information, a suspicion that weapons are present in a
particular setting is not enough, as a general matter, to demonstrate an
objectively reasonable concern for immediate danger to police or public."
Mobley, 40 F.3d at 693 n. 2. In Quarles itself the police had "specific
reliable information that a weapon was present and a specific reason to
think that the location of the gun posed a concrete danger to the
public." Jones, 154 F. Supp.2d at 628.
In the context of searches for weapons, this doctrine
requires, at a minimum, that the authorities have some
real basis to believe that weapons are present, and
some specific reason to believe that the weapon's
undetected presence poses a danger to the police or to
the public.
Using these principles, the "public safety" exception applies to the
situation here. The parole officers had a real basis to believe that a
firearm was present in Newton's apartment — the social worker told
them that Newton's mother had reported that Newton kept a gun in the
house. The gun clearly posed an immediate and serious danger to the
officers and to Newton's mother and her husband. When the parole
officers interrogated Newton, he was in handcuffs and did not himself
pose a threat to the officers or the public. However, the parole officers
questioned Newton before the officers had searched the apartment. At the
time, they did not know whether there was anyone else in the apartment
who could use the weapon. Indeed, in addition to Newton, Wright, and
Wright's husband, another person was present in the apartment when the
officers entered. Therefore, the parole officers had a legitimate safety
concern when they asked Newton whether he had any contraband in the home
and what was in the box at which he had nodded.
Finally, even if Newton's statements were suppressed because of the
parole officers' failure to read him the Miranda warnings before
questioning him, the physical evidence found during the search is still
admissible. Newton argues that all tangible evidence seized as a
consequence of an interrogation in violation of Miranda should be
suppressed as "fruit of the poisonous tree" under Wong Sun v. United
States, 384 U.S. 436, 86 S.Ct. 1602 (1966). Neither the Supreme Court
nor the Second Circuit has ruled definitively on whether physical
evidence must be suppressed if it is derived from statements taken in
violation of Miranda, see United States v. Eggers, 21 F. Supp.2d 261, 266
(S.D.N Y 1998), but opinions in closely related contexts, by other
circuits, and by district courts in this circuit leave no doubt that the
physical evidence found during the search of Newton's apartment should not
be suppressed even if Newton's statements were excluded because he was
not given the Miranda warnings.
Although Elstad specifically addressed two confessions of the same
defendant, the principles it expressed clearly apply in other contexts.
The Supreme Court reached a similar conclusion in Tucker, 417 U.S. at
446-50, 94 S.Ct. at 2365-67, in which it refused to suppress the
testimony of a witness who was identified as a result of a statement
obtained in violation of Miranda. Moreover, Justice O'Connor, who wrote
the majority opinion in Elstad, concluded a year earlier in Quarles that
physical evidence derived from a defendant's statement obtained in
violation of Miranda should not be suppressed. See Quarles, 467 U.S. at
671-72, 104 S.Ct. at 2639-40 (O'Connor, J., concurring in part and
dissenting in part).*fn17
Likewise, every circuit that has considered the issue since Elstad has
construed Elstad to apply equally to all forms of evidence derived from
an interrogation that only violated Miranda. See United States v.
DeSumma, 272 F.2d 176, 179-81 (3d Cir. 2001) ("the fruit of the poisonous
tree doctrine does not apply to derivative evidence secured as a result
of a voluntary statement obtained before Miranda warnings are issued");
United States v. Elie, 111 F.3d 1135, 1142 (4th Cir. 1997) (weapons
"obtained as a result of an unwarned statement that was voluntary under
the Fifth Amendment [not suppressed as] `fruit of the poisonous tree'");
United States v. Crowder, 62 F.3d 782, 786-88 (6th Cir. 1995) (admitting
a shotgun discovered due to an unwarned but not coerced statement to
police); United States v. Mendez, 27 F.3d 126, 130 (5th Cir. 1994) ("A
mere violation of Miranda's `prophylactic' procedures does not trigger
the fruit of the poisonous tree doctrine. The derivative evidence rule
operates only when an actual constitutional violation occurs, as where a
suspect confesses in response to coercion."); United States v. Wiley,
997 F.2d 378, 382-83 (8th Cir. 1993) (admitting evidence seized as a
consequence of an unwarned statement because the statement and the
consent to search were voluntary); United States v. Gonzalez-Sandoval,
894 F.2d 1043, 1048 (9th Cir. 1990) ("Where there is no evidence of
coercion or a denial of due process in elicitation of the statements, the
object of
the fifth amendment exclusionary rule — assuring
trustworthiness of evidence introduced at trial — is not served by
barring admission of the derivatively obtained evidence or
statements."). In a similar context, the Second Circuit tracked the
analysis of Elstad and concluded where there was "no indication of
trickery or coercion" by the police, it was permissible to use a
statement obtained without Miranda warnings to determine probable cause.
See United States v. Morales, 788 F.2d 883, 885-87 (2d Cir. 1986).
In addition, at least three district courts in this circuit have
extended Elstad to include all forms of derivate evidence, including
physical evidence. See United States v. Bin Laden, 2001 WL 30061, at *2-3
(S.D.N.Y. Jan. 2, 2001) ("Thus, evidence (whether physical or
testimonial) derived from `unwarned' statements is not excluded unless
the original statements were made involuntarily."); Eggers, 21 F. Supp.2d
at 266 (concurring with the analysis "that fruits of Miranda violations
are to be suppressed only upon a showing of actual coercion"); United
States v. Guzman, 11 F. Supp.2d 292, 297 (S.D.N.Y. 1998) ("Therefore,
physical evidence derived from a statement obtained in violation of
Miranda is admissible absent evidence of coercion or other misconduct on
the part of law enforcement officers sufficiently egregious to offend due
Applying this overwhelming case law, it is clear that even if there
were a violation of Miranda in the parole officers' questioning of
Newton, the physical evidence gathered in the search of his mother's home
should only be suppressed if Newton's statements were a product of actual
coercion. In Elstad, the Supreme Court defined actual coercion as
"physical violence or other deliberate means calculated to break the
suspect's will." Elstad, 470 U.S. at 312, 105 S.Ct. at 1285. Here,
Newton was not actually coerced by physical violence or powerful
psychological pressures. While he was handcuffed and possibly in the
presence of several parole and police officers during the questioning,
these circumstances are very far from actual coercion. See, e.g.,
Guzman, 11 F. Supp.2d at 298-99 (confession of suspect questioned all
night at station-house not coerced). Accordingly, even if there were a
violation of Miranda in the parole officers' questioning of Newton, the
gun, the loaded clip, the loose rounds, and all other physical evidence
gathered during the search would not be suppressed.
The search of Newton's mother's apartment was conducted pursuant to a
regulation that itself satisfied the Fourth Amendment's reasonableness
requirement. Therefore, Newton's motion to suppress the evidence
gathered during that search is denied. Newton was not in custody when
the parole officers interrogated him, so the parole officers did not need
to read him the Miranda warnings before questioning him. Even if Newton
was in custody at the time, his motion would be denied because the
officers' questions were prompted by a reasonable concern for public
safety. Thus, Newton's motion to suppress his responses is denied
despite the parole officers' failure to administer the Miranda warnings.
Nor would the physical evidence be excluded even if the statements were
suppressed due to the parole officers failure to read Newton the Miranda
warnings because the "fruit of the poisonous tree" doctrine does not
apply here. Accordingly, all of the Newton's motions are denied.
Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.
Official citation and/or docket number and footnotes (if any) for this case available with purchase.
Learn more about what you receive with purchase of this case.
LRC, Inc. About Us


text:
Windrunner's Tunic of Triumph (Horde heroic)
104,632pages onAdd New Page
this wiki
this wiki
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- Windrunner's Tunic of Triumph
- Heroic
- Item Level 258
- Binds when picked up
- Chest
- 1448 Armor
- +86 Agility
+121 Stamina
+80 Intellect
- Red Socket
Yellow Socket
- Socket Bonus: +12 Attack Power
- Durability 140 / 140
- Classes: Hunter
- Requires level 80
- Equip: Improves hit rating by 72.
Equip: Improves critical strike rating by 94.
Equip: Increases attack power by 306.
- Triumphant Windrunner's Pursuit (5 pieces)
- [Windrunner's Tunic of Triumph]
[Windrunner's Handguards of Triumph]
[Windrunner's Headpiece of Triumph]
[Windrunner's Legguards of Triumph]
[Windrunner's Spaulders of Triumph]
- (2) Set: The damage done by your Serpent Sting ability can now be critical strikes.
(4) Set: Each time you hit with a ranged attack, you have a chance to grant your pet 600 attack power for 15 sec.

subset: commoncrawl


text:
There are millions of Internet-Servers daily hacked from the same hand full of Hackers.
Every Webmaster has the same problems with Hackers, Intruders, Attackers and Spammers, but nobody is fighting against these Terrorists.
Should that then go on forever?
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Sat, 10 Dec 2016 01:08:08 GMT - Actual more as 21.000.000 Hackers in our Database. (The newest 100 are displayed on the Globe and Map)
Detail informations for IP
WebServer Output: http://22.214.171.124
☎ Whois 184.108.40.206
HTML Markup Validation 18.104.22.168
The Web Site Header: 220.127.116.11
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171 bad neighbor IPs are known!


text:
This FATWHEELS.com blog is made up of a community of people whose lives are touched, (in some way), by disability. We are all on this journey together and our goal here is to inspire, educate and encourage one another along the way.
This is not a marketplace for products and we will never "advertise" anything here other than acceptance, inclusion and possibility.
Please feel free to respectively comment and contribute your ideas and perspectives on the posts found here. We can't wait to visit with you – life is a highway…..let's make sure EVERYBODY can ride!


text:
Friday, September 23, 2016
Wellsville: Concerns expressed about Genesee River Flood Control Project
The U.S. Army Corps of Engineers was out in force Friday inspecting the flood control project in Wellsville between the Wellsville Golf Course and the former Sinclair Refinery Site. Initial findings posed concerns according to Robert W. Remmers, PE, Chief of the Operations and Technical Support Section. Remmers told RNN that vegetation and tree growth in and around the flood control project represented "a concern."
A crew of at least a dozen were documenting conditions along the Genesee River in Wellsville. Crews were documenting addresses and snapping photo's of properties, tree's, fences, etc. Remmers said the report would be forwarded to the New York State Department of Environmental Conservation and eventually the village. Remmers said it would likely be "a year or two" before any action is taken. He said Friday's focus was identifying priority issues. When asked if some of the findings were serious, Remmers responded "yes."


text:
Posted: Saturday, September 10, 2016 9:17 PM
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• Location: Atlanta, The Bricks
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text:
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Singapore-headquartered Yantai Raffles Shipyard (YRS) Ltd. is a leading offshore and marine fabrication specialist. Founded in 1994, the company's production facilities are located in Yantai, China. YR S specializes in the...More
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Established in 1941, Russia's Joint-Stock Company (JSC) 'Tyazhmash' is a leading manufacturer of products for the industrial equipment, energy and transportation sectors including metallurgy, construction, chemical and oil...More
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The New York City-based design company is not a traditional brand marketing fi rm, content to design logos, signs and advertising slogans. Instead, Gilmore Group is focused on consumer experiences and everything that goes with...More
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Chikusui Canycom, Inc. is a leading manufacturer of mower equipment and industrial carriers for the agricultural, construction, and forestry sectors. The company entered the overseas market 20 years ago and its sales channels...More
Universal Shipbuilding Corporation 06/01/2008
Japan's Universal Shipbuilding Corporation (USC) manufactures a wide range of ships from merchant ships such as 300,000 ton oil tankers, as well as bulk, ore, and liquified natural gas (LNG) carriers. USC is building the...More


text:
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text:
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text: However, note that the oneiric->precise upgrade log also shows this output from the libc6 preinst: Preparing to replace libc6 2.13-20ubuntu5 (using .../libc6_2.15-0ubuntu2_amd64.deb) ... locale: /lib/x86_64-linux-gnu/libc.so.6: version `GLIBC_2.15' not found (required by locale) locale: /lib/x86_64-linux-gnu/libc.so.6: version `GLIBC_2.14' not found (required by locale) Checking for services that may need to be restarted... Checking init scripts... runlevel: /lib/x86_64-linux-gnu/libc.so.6: version `GLIBC_2.14' not found (required by /lib/x86_64-linux-gnu/libnih.so.1) runlevel: /lib/x86_64-linux-gnu/libc.so.6: version `GLIBC_2.15' not found (required by /lib/x86_64-linux-gnu/libnih.so.1) Unpacking replacement libc6 ... libnih1 is being unpacked before the libc6 that it depends on, making the runlevel command unusable (and, btw, making the system unbootable during this window!). We'll need to fix that as well, otherwise we can't reliably detect that cron should be stopped. -- You received this bug notification because you are a member of Ubuntu Foundations Bugs, which is subscribed to eglibc in Ubuntu. https://bugs.launchpad.net/bugs/508083 Title: cron crashed with SIGSEGV in __pthread_initialize_minimal_internal() Status in "eglibc" package in Ubuntu: Triaged Status in "cron" package in Debian: New Bug description: Binary package hint: cron I installed karmic in Virtualbox. I updated it. I upgraded to Lucid on 1-15-10. When I restarted after the upgrade, apport came up to report this bug. ProblemType: Crash Architecture: amd64 Date: Fri Jan 15 11:17:01 2010 Disassembly: 0x0: Cannot access memory at address 0x0 DistroRelease: Ubuntu 10.04 ExecutablePath: /usr/sbin/cron InstallationMedia: Ubuntu 9.10 "Karmic Koala" - Release amd64 (20091027) Package: cron 3.0pl1-106ubuntu3 ProcCmdline: CRON ProcEnviron: PATH=(custom, no user) ProcVersionSignature: Ubuntu 2.6.32-10.14-generic SegvAnalysis: Segfault happened at: 0x0: Cannot access memory at address 0x0 PC (0x00000000) not located in a known VMA region (needed executable region)! SegvReason: executing NULL VMA Signal: 11 SourcePackage: cron StacktraceTop: ?? () __pthread_initialize_minimal_internal () _init () from /lib/libpthread.so.0 ?? () ?? () from /lib64/ld-linux-x86-64.so.2 Tags: lucid Title: cron crashed with SIGSEGV in __pthread_initialize_minimal_internal() Uname: Linux 2.6.32-10-generic x86_64 UserGroups: To manage notifications about this bug go to: https://bugs.launchpad.net/ubuntu/+source/eglibc/+bug/508083/+subscriptions


text:
15 minutes with Evgeny Leonov (Russia)Thursday, September 15th, 2016
With Grisha Mikhalitsyn & Evgeny Leonov.
Music: Unkle – burn my shadow.
Filmed by Semion Levchenko, Eugeniy Kozlov & Nurtai. Edited by Kirill Galushko.
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Video offline.
Previously: Aaron Feinberg: USD Legacy Profile by Joe Navran (2005).
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Evgeny Leonov rocked the blading scene for almost a decade, even had his USD Pro Model in 2005. He is now USD Flow. It's such a pleasure to see him skating (thanks to True Fake) and he is stronger than ever.
Featuring Evgeniy Leonov (profile at 12'20), Trizno Boris, Valera Belogub, Egor Loginov. Saint-Petersburg, Summer 2010.
Visit true-fake.ru.


text:
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text:
More than 18,000 road accidents in Great Britain last year were caused by snow or ice, latest Government statistics have revealed. A total of 15,479 car accidents were attributed to snow or ice on the roads, while 927 light goods vehicles were involved in accidents under similar conditions*.
This poses a huge threat to fleets, especially as the first snow has already fallen in the UK this winter. Tyre experts ATS Euromaster are reminding businesses that they must prepare for difficult travelling conditions and the record low temperatures expected by long-range forecasters.
Peter Fairlie, ATS Euromaster's Group Sales Director, says: "The accident figures speak volumes and it shows that you cannot be too prepared when it comes to the winter months. Cold weather tyres are a simple and cost-effective way to ensure your fleet stays safe and mobile during the winter – not only when driving on snow and ice – but as soon as the temperature drops below seven degrees Celsius.
"It makes good business sense to be prepared, but people need to start fitting their cold weather tyres now. A company's productivity and financial security – not to mention their staff's safety - could be jeopardised if they delay."
The Department for Transport statistics, issued as part of their Road Accidents and Safety Annual Report 2010, also reveal that younger drivers are far more prone to accidents than their middle-aged counterparts. Accidents were most commonly seen by drivers in their twenties, suggesting that fleet managers should be wary of sending younger drivers out in cold weather without the right equipment.
The statistics recorded 56,756 accidents involving people aged 20 to 29. Men were the main cause of these accidents, with almost 65 per cent (36,787) of young drivers involved in accidents being male.
In anticipation of high demand from businesses, ATS Euromaster has significantly increased its investment in cold weather tyres this year, with a choice of premium, mid-range and low-cost brands on offer to suit all fleets.
Cold weather tyres offer greatly improved grip, handling, cornering and reduced braking distances when temperatures drop below seven degrees Celsius. Drivers' existing fitments can be checked in to ATS Euromaster's network of tyre 'hotels' where they will be inspected and securely stored until next March or April.
Businesses can get further information about cold weather tyres from: http://www.atseuromaster.co.uk/business-customers-cold-weather-tyres.htm
For more information on the Department for Transport's Road Accidents and Safety Annual Report 2010 visit:
*A total of 18,431 reported accidents in Great Britain last year were attributed to snow and ice on the road. Of that amount, 334 were pedal cycles, 564 motorcycles, 15,479 cars, 927 light good vehicles, 568 HGVs, 317 buses or coaches, 234 other motor vehicles and eight other vehicles.
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