Court of Appeals March Session: Arguments of Interest for March 29, 2017

The Court of Appeals’ March Session concludes on Thursday, March 29, 2017 with three criminal appeals on the argument docket (the Court’s case summaries can be found here). The Court will hear arguments on the following issues: (1) whether a police detective’s warrantless search of a parolee’s car, which revealed a gun and ammo, was justified, even though it was not conducted by the parolee’s parole officer specifically, but by members of the Joint Apprehension Warrant Squad; (2) whether a criminal defendant’s nervous behavior looking to backseat of his car justified a search of the car to ensure the safety of the police officers even though the defendant had been frisked and found not to have any weapons or contraband; and (3) whether a police officer’s action of running the license plate number of vehicle that has not violated any rules of road was an unlawful search because no reasonable suspicion or cause existed for the stop.

No. 48     People v Everett B. McMillan

In McMillan, the defendant, who was on parole from a prior conviction, was arrested on a parole violation warrant by two police detectives assigned to the Joint Apprehension Warrant Squad. After the arrest, the detectives used the defendant’s key to get into his car and conduct a warrantless search pursuant to the defendant’s certificate of release to parole, which revealed a gun and ammunition.  The certificate, as a condition of parole, gave the defendant’s parole officer consent to search the defendant’s person, residence, and property.

At trial, the defendant moved to suppress the gun and ammo as the product of a non-consensual, warrantless search, because he only gave consent to search by his parole officer, not the police generally. Supreme Court denied the motion, finding that the search was valid, and was convicted of criminal possession of a weapon and sentenced as a persistent violent felony offender to 20 years to life.

The Appellate Division, Second Department affirmed the conviction. The Court held that the search was justified under People v Huntley, a case where the Court of Appeals held that a search of a parolee by the police generally, not by the parolee’s parole officer in the course of his duties, must be based upon a showing of probable cause.  The Court held that the police detectives’ search was akin to a parole officer’s search because the detectives were doing the search as a part of the Joint Apprehension Warrant Squad.

On appeal, the defendant argues that the detectives were not his parole officer and had no supervision responsibility over him. Thus, the defendant argues that the search was not consensual and was unlawful.

The Appellate Division, Second Department’s decision can be found here.



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