Summary of the Court’s Decision — 1. The Defendant’s Motion to Suppress the Ammunition and Air Pistol is DENIED 2. The Defendant’s Motion to Suppress the Statements “It is a Toy” and “This is My Bedroom” is DENIED 3. The Defendant’s Motion to Suppress the Statements “The Gun Is in The Room Over There. It Is in The Second Drawer of The Dresser on The Left” and “The Room Is Vacant. It Used to Belong to My Uncle That Moved Out” is GRANTED 4. The Defendant’s Motion to Suppress the Loaded Firearm is GRANTED Decision and Order A Mapp/Huntley/Dunaway hearing was held before this Court on August 25TH, 2022. Parole Officer Crystal Pipkin testified for the People. The People entered various exhibits into evidence, including the Department of Corrections and Community Supervision Certificate of Post-Release Supervision Conditions of Release, the Special Conditions of Release to Community Supervision form, the defendant’s parolee Chronos case review, a photograph of a closet in the defendant’s room, a photograph of the bullets recovered from the defendant’s bedroom, a photograph of the air pistol recovered from the defendant’s bedroom, a photograph of the defendant’s New York State Driver’s License, a photograph of the defendant’s passport, a photograph of a box containing a loaded firearm, and a photograph of a loaded firearm. The defendant did not call any witnesses but introduced two exhibits into evidence — the May 2018 Corrections and Community Supervision Directive on Search and Seizure and the NYPD Finest printout of the defendant’s license plate. The Court makes the following findings of fact and conclusion of law. Findings of Facts The defendant was released from prison in October of 2017 under the supervision of Parole Officer Moore and Wilkerson. Prior to his release, the defendant signed a Certificate of Release for Post-Release Supervision, which included his name, NYSID number, DIN number as well as the conditions of his release, which included: “I will permit my Parole Officer to visit me at my residence and/or place of employment and I will permit the search and inspection of my person, residence, and property.” “I will not own, possess, or purchase any shotgun, rifle or firearm of any type without the written permission of my Parole Officer. I will not own, possess or purchase any deadly weapon as defined in the Penal Law or any dangerous knife, dirk, razor, stiletto, or imitation pistol. In addition, I will not own, possess or purchase any instrument readily capable of causing physical injury without a satisfactory explanation for ownership, possession or purchase.” In June of 2021, Parole Officer Pipkin took over the defendant’s parole supervision. At that time, he was categorized as a COMPAS level-four supervisee, requiring quarterly calls to his parole officer, quarterly home visits, as well as reporting to his parole officer when instructed. On August 2ND, 2021, Officer Pipkin met with the defendant, introduced herself and went over her monitoring plan. Officer Pipkin advised defendant that his next parole appointment date would be March 22ND, 2022 and continued his parole monitoring status at level-four. She also had the defendant agree to and sign additional conditions of supervision including: “I WILL live and remain at my approved residence of 120-18 178TH Place, Jamaica and not move without the prior approval and knowledge of my Parole Officer. I will report any changes in my address within 24 hours in person to the Queens Area office located at 9236 Merrick Blvd, Jamaica NY.” “I will not own, possess, or purchase any form of weapons (gun, imitation pistol, knife, etc), ammunition, body armor, restraints (handcuffs, handcuff keys, etc) or pepper spray.” On December 3RD, 2021, at 11:45 A.M, New York City Police Detective Washington, from the 114TH Precinct, contacted Parole Officer Pipkin to meet and review video and still photographs of a shooting that she believed involved the defendant. On December 8TH, 2021, at approximately 12:03 P.M., Officer Pipkin met with Detective Washington and reviewed still images and video footage showing an individual firing several rounds in the air near a vehicle and entering and exiting a dwelling. Officer Pipkin was unable to identify the individual in the video or in the still images due to the dark quality of the video and her limited interaction with the defendant. Officer Pipkin requested Detective Washington provide her with additional information, including the complaint report from the shooting. Detective Washington sent Officer Pipkin, the complaint report and a License Plate Reader (herein “LPR”) showing the defendant’s BMW on the Grand Central Parkway, under the 27TH Avenue overpass, that Detective Washington told Officer Pipkin was in the vicinity of the shooting. Based on the information provided, Officer Pipkin agreed to speak to her supervisor to determine if there was an adequate basis to conduct a search of the defendant’s home and vehicle — a BMW with New York license plate KTA9167. She also agreed to update the Detective on her supervisor’s decision. Officer Pipkin spoke to her supervisor on December 14TH, 2021 and was granted permission to search. Officer Pipkin informed Detective Washington that the searches of both the defendant’s home and vehicle were approved by her supervisor, and the search was scheduled for December 16TH around 11pm. On December 16TH, 2021, at approximately 10:45P.M., Officer Pipkin and approximately 6 other parole officers entered the defendant’s home, located at 120-18 178TH Place in Jamaica, Queens, informed him of their intention to search and placed defendant in handcuffs and leg restraints (shackles) pursuant to protocol. At the time, the defendant’s mother and his girlfriend were also present in the home. After Officer Pipkin asked the defendant where his room was, he responded that his bedroom was the last bedroom away from the stairs on the second floor. Officer Pipkin sat the defendant in front of the room as she conducted the search. Other parole officers stayed with the defendant’s mother and his girlfriend in the living room while Officer Pipkin and several parole officers searched the defendant’s bedroom. During the search of the defendant’s room, Officer Pipkin recovered 40 rounds of ammunition and a magazine on the top of a shelf in the closet, defendant’s driver’s license and passport and what appeared to be a firearm from a chest. When Officer Pipkin showed defendant the item that appeared to be a firearm, the defendant stated, “it is a toy.” After searching and recovering these items from the defendant’s room, Officer Pipkin communicated with Detective Washington and updated her on the search and the recovered items. She did not contact his resident precinct, the 113TH Precinct. Officer Pipkin agreed to continue to update Detective Washington of her findings and the results of any additional search. After the call and/or texts to the Detective, Officer Pipkin told the defendant that she was going to take him to his vehicle to conduct a search. After not recovering anything from the defendant’s vehicle, on their walk back towards his home, Officer Pipkin told the defendant that “there must be a weapon in his house” and to think about the risk of jail to his family if she were to recover anything. Still handcuffed and shackled, on the street, feet away from his home, the defendant stated, “a weapon was in the home”, and “it was in the bedroom next to his.” After returning to the house, the defendant told Officer Pipkin that there was a firearm in the dresser in the second drawer. Officer Pipkin and her fellow parole officers recovered a white box, labeled Taurus, opened it, and found a black firearm inside. The defendant explained that the room was his uncle’s. After recovering the firearm, Officer Pipkin contacted Detective Washington and informed her that she had recovered a black firearm. Detective Washington responded that she would inform her when she arrived, and shortly thereafter, arrived and arrested the defendant. Conclusions of Law The People seek to introduce the ammunition, air pistol, and magazine recovered from the defendant’s bedroom, as well as the firearm recovered from the second bedroom at trial. The People further seek to introduce the statements “This is my bedroom,” “It is a toy” “The gun is in the room over there. It is in the second drawer of the dresser on the left” and “The room is vacant. It used to belong to my uncle that moved out”. “Though a defendant who challenges the legality of a search and seizure has the burden of proving illegality, the People have the burden” of showing the legality of the police conduct in the first instance.” People v. Berrios, 28 NY2d 361, 367 (1971). Although Corrections and Community Supervision Directive Number 9404 imposes an internal parole standard of an “articulable reason” to justify a search, the legal standard to search a parolee’s property requires that the search be “rationally and substantially related to the performance of [the parole officer's] duty.” People v. Huntley, 43 N.Y.2d 175, 180-81 (1977); People v. Jackson, 46 N.Y.2d 171, 175 (1978); People v. Santiago, 176 A.D.3d 744 (2d Dept. 2019); People v. Moses, 177 A.D.3d 619 (2d Dept. 2019); People v. Purnell, 166 A.D.3d 814 (2d Dept. 2018). A search which would be unlawful if directed against an ordinary citizen may be proper if conducted against a parolee. id. The status of a parolee is always relevant and may be critical in evaluating the reasonableness of a particular search or seizure. Huntley, 43 N.Y.2d at 180-81; see also, Morrissey v. Brewer, 408 U.S. 471 (1972). However, “the standard authorization signed by defendant as parolee for searches of his person, residence or property…is not to be taken as an unrestricted consent to any and all searches whatsoever or as a blanket waiver of all constitutional rights to be secure from unreasonable searches and seizures.” Huntley, 43 N.Y.2d at 182. The special circumstances and close supervision that come with being a parolee must be considered when determining if a search is reasonable. People v. McMillan, 29 N.Y.3d 145 (2017); see also People v. Fridell, 81 A.D.2d 869 (2d Dept. 1981). “Where the search and seizure is undertaken by the parolee’s own parole officer,…whether the action [is] 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.” Huntley, 43 N.Y.2d at 181. It is not enough that there “[i]s some rational connection; the particular conduct must also have been substantially related to the performance of duty in the particular circumstances.” Id. A parole officer’s stated purpose of a search involving a parolee must be reasonably designed to lead to evidence of a parole violation such that it is reasonably related to the parole officer’s duty to prevent parole violations. People v. LaFontant, 46 A.D.3d 840, 841 (2d Dept. 2007); see also, People v. Candelaria, 63 A.D.2d 85, 90 (2d Dept. 1978); People v. Mackie, 77 A.D.2d 778, 779 (4 Dept. 1980). Recovery of the Air Pistol, Ammunition and Magazine Here, Officer Pipkin was informed by a member of the New York City Police Department that the defendant, a parolee under her supervision, was believed to have been involved in a shooting. Despite not being able to positively identify the defendant in the video or still images, Officer Pipkin relied on the Detective’s assertions, as well as the LPR records provided by the Detective, that she was led to believe showed the defendant’s vehicle in the vicinity of the shooting. Concerned that the defendant may be in possession of a firearm, in violation of several of conditions of his release on parole, she spoke to her supervisor, who authorized the search of the defendant’s home and vehicle. While it is clear, based on the officer’s cross examination, that Officer Pipkin should have asked additional questions, particularly, the proximity of the date, time and place of the defendant’s LPR sighting to the shooting, she nonetheless acted within her discretion. The totality of circumstances establish that the parole officer’s search of the defendant’s bedroom and vehicle was reasonably and rationally related to the performance of her duties, as well as satisfied the internal Parole directive 9404 requiring an “articulable reason” to search. See e.g., McMillan, 29 N.Y.3d at 148. Moreover, while Officer Pipkin and Detective Washington communicated with each other prior to the search and about the shooting, no one from the NYPD was involved in the initial search or the recovery of the air pistol, ammunition, and magazine. Therefore, similar to Purnell and Moses, even though information pertaining to the presence of ammunition and/or a firearm in the defendant’s home was provided “by the police department, [it] did not signify that the home visit was initiated by the police department…or render the search a police operation.” Moses, 177 A.D.3d at 621; Purnell, 166 A.D.3d at 815; see also People v. Johnson, 63 N.Y.2d 888 (1984). Accordingly, the defendant’s motion to suppress the ammunition, magazine and air pistol recovered from his bedroom is DENIED. Suppression of Statements The People served C.P.L. §710.30(1)(a) notice of the statements “this is my bedroom. The gun is in the room over there. It is in the second drawer of the dresser on the left. The room is vacant. It used to belong to my uncle that moved out” to Parole Officer Crystal Pipkin. At the hearing, Officer Pipkin clarified, defendant’s statement “this is my bedroom” was made upon her initial entry into the defendant’s home. Defendant’s statement “it is a toy” was made after she found the air pistol in his bedroom1. His last statements “the gun is in the room over there; it is in the second drawer on the left” and “the room is vacant, and it used to belong to my uncle that moved out” was made while defendant was on the street in response to being told that Officer Pipkin believed there to be a gun in the home and that defendant’s family faced arrest and incarceration. On a motion to suppress a statement, “the People have the burden of demonstrating, beyond a reasonable doubt, that the defendant’s statements were voluntary, and/or that the defendant knowingly, intelligently, and voluntarily waived his or her Miranda rights.” People v. Johnson, 139 A.D.3d 967, 969 (2d Dept. 2016); People v. Loucks, 125 A.D.3d 890 (2d Dept. 2015); People v. Anderson, 42 N.Y.2d 35 (1977). Miranda warnings “are required before a person in custody is subjected to interrogation by the police.” People v. Wortham, 37 N.Y.3d 407, 412-413 (2021). “The term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police…that the police should know are reasonably likely to elicit an incriminating response.” People v. Paulman, 5 N.Y.3d 112, 129 (2005) quoting Rhode Island v. Innis, 446 U.S. 291, 300 (1980). Suppression of Initial Statements While the People contend that the defendant was not in custody when he made the initial statement “this is my bedroom”, the testimony clearly established that he was. The defendant was detained, shackled, in handcuffs and surrounded by at least seven parole officers who were present, with the intention of searching for evidence of a parole violation and/or a possible penal law violation. While in custody, the parole officer asked defendant a question and the defendant responded. However, the question and defendant’s response, “Where is your room?” “This is my bedroom.” constitutes pedigree information, not interrogation, and therefore is exempt from any Miranda requirement. See Wortham, 37 N.Y.3d at 413 (“pedigree questions must be reasonably related to the police’s administrative concerns for the pedigree exception to Miranda to apply”). While the exception is narrow and would not apply “if the pedigree question was a disguised attempt at investigatory interrogation,” here, where the officer was attempting to narrow the focus and intrusiveness of her search to the parolee’s bedroom, as opposed to other rooms in a home cohabited by family members, the question was reasonable, proper and not a “concealed attempt to interrogate the defendant”. Id. at 415 citing People v. Rodney, 85 N.Y.2d 289, 294 (1995). In Wortham, the Court ruled that the defendant’s statement that he lived at the apartment, in response to an officer asking him where he lived and for his name, date of birth, height and weight, prior to finding any contraband in the apartment, without first receiving Miranda warnings, was proper. Id. at 411-412. The court cautioned that “the fact that the response given by the defendant may ultimately turn out to be incriminating at trial does not alter the analysis.” Id. at 414. Accordingly, the defendant’s motion to suppress the statement, “this is my bedroom”, is DENIED. The defendant’s statement “it is a toy” was not made in response to any questioning by Officer Pipkin or by any officer. “Volunteered statements made without apparent external cause are admissible even if the defendant was in custody.” People v. Tavares-Nunez, 87 A.D.3d 1171, 1172 (2d Dept. 2011); see also People v. Alexander, 200 A.D.3d 790 (2d Dept. 2021); People v. Burbridge, 194 A.D.3d 831, 833 (2d Dept. 2021). Defendant voluntarily stated “it is a toy” upon being shown the air pistol that was retrieved from the closet of his bedroom. As such, Miranda warnings were not necessary when he made this statement and the defendant’s motion to suppress this statement is likewise DENIED. Suppression of the Second Statement The People concede that Officer Pipkin’s statements to the defendant telling him that there must be a firearm in the house and that his family faced incarceration, were reasonably likely to elicit an incriminating response, but aver that defendant was not in custody and therefore Miranda was not required. The People’s argument is belied by the totality of the circumstances. Here, a search had already revealed the defendant was in possession of ammunition and thus in violation of his parole conditions and the penal law. He was in handcuffs and leg restraints, surrounded by multiple parole officers. The officer had already contacted a NYPD detective to update her on the recovered ammunition. Defendant was clearly in custody and not free to leave. See People v. English, 73 N.Y.2d 20, 21-22 (1989) (parole officer “had already taken defendant into custody…had ample information on which to determine that defendant had not complied with the conditions of his parole and had in fact informed defendant that the decision was already made” when she began to question the defendant). At that point, the parole officer’s actions were the functional equivalent of those of a police officer.” Id.; People v. Blacks, 153 A.D.3d 720 (2d Dept. 2017). The People’s position that the defendant’s statements were voluntary since the Consent to Search form required the defendant to truthfully and promptly answer Parole Officer Pipkin’s questions, is likewise incorrect. A parolee’s Consent to Search form “is not to be taken as an unrestricted consent to any and all searches whatsoever or as a blanket waiver of all constitutional rights to be secure from unreasonable searches and seizures.” Huntley, 43 N.Y.2d at 182. Accordingly, having failed to meet their burden of demonstrating that the second set of statements made, without the benefit of Miranda warnings, were voluntary and not the result of any custodial interrogation, inducement, provocation, or encouragement on the part of law enforcement, the defendant’s motion to suppress the second set of statements is GRANTED.2 Suppression of Loaded Firearm Evidence obtained as a result of illegal police conduct must be excluded as fruit of the poisonous tree. People v. Pauline, 25 N.Y.2d 445, 451 (1969); Wong Sun v. U.S., 371 U.S. 471, 488 (1963); People v. Bailey, 164 A.D.3d 815 (2d Dept. 2018); People v. Nichols, 117 A.D.3d 881 (2d Dept. 2014). Since the firearm was recovered as a direct result of an illegally obtained statement, the firearm must also be SUPPRESSED. Contrary to the People’s contention, the inevitable discovery exception does not apply under these facts. See People v. Turriago, 90 N.Y.2d 77, 86 (1997); People v. Stith, 69 N.Y.2d 313, 318 (1987); People v. Smith, 98 A.D.3d 590 (2d Dept. 2012); People v. Henagin, 129 A.D.3d 864 (2d Dept. 2015). There was no testimony at the hearing that Officer Pipkin intended to search or did search any other area in defendant’s home, except the rooms that defendant specifically indicated. Officer Pipkin never explained if the search of the defendant’s home was paused or completed after the search of his bedroom or why she stopped her search at the point that she did to search his car. Likewise, there was no testimony about a search of any other rooms in the house or her intention to search the whole house. Her testimony leaves the court to conclude that she limited her search to two rooms, the bedroom defendant indicated was his and the bedroom the defendant indicated had a firearm. Officer Pipkin clearly testified that the return to the house and the “second” subsequent search was conducted only after the defendant’s response indicating a gun was in another bedroom. Furthermore, at the time of the ‘continued’ search, Parole Officer Pipkin had already recovered ammunition from defendant’s bedroom, in clear violation of the terms of his parole release, as well as, constituting a new violation of the penal law. She not only stopped her active search, but she repeatedly contacted Detective Washington, informing her about the recovered ammunition, via text and phone calls at midnight. See e.g., Mackie, 77 A.D.2d at 779 (suppression warranted when parole officer “was merely a conduit for doing what the police could not do otherwise”); LaFontant, 46 A.D.3d at 841. At that point, Officer Pipkin was no longer searching for items reasonably designed to lead to evidence of a parole violation but was acting as a conduit for the NYPD. When “parole officers [are] not seeking to ascertain proof of a parole violation, but rather were acting as agents of the police, thereby enabling the police to circumvent constitutional requirements” any evidence recovered should be suppressed. Candelaria, 63 A.D.2d at 90; supra; People v. Escalera, 121 A.D.3d 1519 (4 Dept. 2014) leave denied 24 N.Y.3d 1083 (2014). As such, based upon the totality of the circumstances here, the People have failed to establish that the continued questioning of the defendant and the second search was lawful and rationally and substantially related to Officer Pipkin’s duty. Accordingly, the defendant’s motion to suppress the firearm as fruit of the unlawful law enforcement action (i.e., the statement) is GRANTED. This constitutes the decision and order of the Court. Dated: October 19, 2022
