United States of America Ex Rel. Herbert Sperling, Relator-Appellant v. Walter v. Fitzpatrick, Warden, West Street House of Detention

426 F.2d 1161, 1970 U.S. App. LEXIS 9268

• Court: Court of Appeals for the Second Circuit
• Decided: May 12, 1970
• Docket: 279, Docket 33780
• Status: Published

Opinions

HAYS, Circuit Judge.

Appellant Herbert Sperling appeals from an order of the United States District Court for the Southern District of New York denying without a hearing his application for a writ of habeas corpus.

I.

Appellant was a mandatory releasee subject to the supervision of the United States Board of Parole.¹ On June 8, 1968, two New York City police officers unlawfully searched appellant and another man and took from appellant’s possession a loaded .38 caliber pistol.² On June 27, 1968 the Board of Parole, upon an application setting forth information as to this incident, issued a warrant for the retaking of appellant as a mandatory release violator.³ Appellant surrendered himself to his Parole Officer and on October 25, 1968, a mandatory release revocation hearing was held before an examiner designated by the Board of Parole pursuant to 18 U.S. C. § 4207 (1964). Appellant appeared and was represented by counsel. The warrant application and a police report substantiating the information contained in the application were introduced into evidence. The examiner found that on June 8, 1968, appellant was in possession of a .38 caliber loaded pistol in violation of the conditions of his release,⁴ and upon the examiner’s recommendation the Board of Parole revoked appellant’s release.

II.

Appellant contends that the Board of Parole could not use the fruits of an unlawful search and seizure as evidence to prove a violation of parole. We cannot accede to this contention and affirm the denial of appellant’s petition for a writ of habeas corpus on the ground that the exclusionary rule is not applicable in a parole revocation proceeding.

The Board of Parole’s action in revoking appellant’s mandatory release was authorized by 18 U.S.C. § 4207 (1964).⁵ In determining whether a mandatory releasee has violated any of the conditions under which he was released, the Board may consider information from any reliable source and if “satisfactory evidence is presented to the Board, a warrant may be issued and the offender returned to an institution.” Parole Board Directive No. 1, 28 C.F.R. § 2.35 (1969). The Parole Board is thus vested with the broadest discretion consistent with due process to act upon reliable evidence in revoking parole. See Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 242 (en banc), cert. denied sub nom. Jamison v. Chappell, 375 U.S. 957, 84 S.Ct. 447, 11 L.Ed.2d 316 (1963). Appellant does not dispute that there was reliable evidence that he had possession of a loaded pistol in violation of one of the conditions of his release.

The exclusionary rule is believed to be a necessary restraint on the adversarial zeal of law enforcement officials.⁶ “As it serves this function, the rule is a needed, but grudgingly taken, medicament; no more should be swallowed than is needed to combat the disease.” Amsterdam, Search, Seizure, and Section 2255: A Comment, 112 U.Pa.L.Rev. 378, 389 (1964).

A parole revocation proceeding is not an adversarial proceeding. A parolee remains, “while on parole, in the legal custody and under the control of the Attorney General.” 18 U.S.C. § 4203 (1964); Anderson v. Corail, 263 U.S. 193, 196, 44 S.Ct. 43, 68 L.Ed. 247 (1923). A parole revocation proceeding is concerned not only with protecting society, but also, and most importantly, with rehabilitating and restoring to useful lives those placed in the custody of the Parole Board.⁷ To apply the exclusionary rule to parole revocation proceedings would tend to obstruct the parole system in accomplishing its remedial purposes.

There is no need for double application of the exclusionary rule, using it first as it was used here in preventing criminal prosecution of the parolee and a second time at a parole revocation hearing. The deterrent purpose of the exclusionary rule is adequately served by the exclusion of the unlawfully seized evidence in the criminal prosecution.

Parolees are, of course, not without constitutional rights,⁸ and there is always the possibility of police harassment. However, instances of such harassment can be treated as they arise.⁹ Appellant does not suggest that he was the object of any harassment.

Finally, we note that the police officers who subjected appellant to the unlawful search may be subjected to both federal and state penalties.¹⁰ While Mapp found these remedies an ineffectual safeguard in the context of criminal proceedings, we see no reason why they may not prove effective in circumstances such as those presented in this case. And if they do not, it would seem sounder policy to strengthen the efficacy of these sanctions rather than to vitiate the penological effectiveness of the Parole Board through the imposition of an inflexible exclusionary rule.

Affirmed.

1 . In 1960, upon his conviction on charges of selling narcotics and conspiracy to do so, appellant was sentenced in the United States District .Court for the Eastern District of New York to a term of ten years imprisonment. On September 23, 1966, appellant was released from prison pursuant to 18 U.S.C. § 4163 (1964), which mandates release at the expiration of the prisoner’s term of sentence “less the time deducted for good conduct.” Appellant was thereupon “deemed as if released on parole” and subject to the jurisdiction of the United States Board of Parole until August 22, 1969, the date of “expiration of the maximum term * * * for which he was sentenced less one hundred and eighty days.” 18 U.S.C. § 4164 (1964).

2 . The court below assumed that the search was unlawful, and the government does not strenuously urge on appeal that it was not. No hearing has been held on the legality of the search. On the basis of the evidence seized, appellant and the other man were indicted in Supreme Court, New York County, for felonious possession of heroin and weapons. A motion was made to suppress the evidence, and the indictment was thereafter dismissed.

3 . The warrant was properly issued pursuant to 18 U.S.C. § 4205 (1964) upon application of Joseph N. Shore, Parole Executive, and upon information submitted by Matthew Terrizzi, Probation Officer. See Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 240 — 241 (en banc), cert. denied sub nom. Jamison v. Chappell, 375 U.S. 957, 84 S.Ct. 447, 11 L.Ed.2d 316 (1963). The warrant application read, in pertinent part, as follows:

“Herbert Sperling was arrested on 6/8/68 at about 4:45 a. m. at the South-

east corner of 48th Street and 3rd Avenue, New York, New York, by New York City Detectives. Sperling was observed to remove a manila envelope from the trunk of his parked car which bore license number NY 1121 QX and hand it to co-defendant Alphonso Sisea who then placed it on the front seat of his parked vehicle which carried license number NY 6028 XL. The arresting officers then stopped both men, identified themselves and then ‘frisked’ Sperling and Sisea.

Detective Lee took a loaded .38 caliber pistol from Herbert Sperling. Detective Lennon seized the manila envelope from the front seat of Sisca’s car and found it it (sic) to contain more than one ounce of heroin. Detective Lee seized a manila envelope from the trunk of Sperling’s car and that envelope also contained more than an ounce of heroin. Detective Lennon seized from the trunk of Sisca’s car a loaded .38 caliber revolver.

Both men were charged with the offense of Felonious Possession of Narcotics and Possession of Weapons and were arraigned the same date in the Criminal Court, Manhattan.

Information has been submitted by USPO Terrizzi, Southern District of N.Y., in his report of June 20, 1968.”

4 . 18 U.S.C. § 4203 (1964) authorizes the release of a prisoner “upon such terms and conditions * * * as the Board shall prescribe.” One of the terms and conditions of appellant’s release was that he would not have in his “possession any firearm or other dangerous weapon without the written permission of [his] Probation Officer, following prior approval of the Board of Parole.”

5 . § 4207 provides:

“Revocation upon retaking parolee.

A prisoner retaken upon a warrant issued by the Board Parole, shall be given an opportunity to appear before the Board, a member thereof, or an examiner designated by the Board.

The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof.

If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.”

6 . The Supreme Court has held the exclusionary rule applicable in forfeiture proceedings, where the “object, like a criminal proceeding, is to penalize for the commission of an offense against the law.” One 1958 Plymouth Sedan v. Commonwealth of Pennsylvania, 380 U.S. 693, 700, 85 S.Ct. 1246, 1250, 14 L.Ed.2d 170 (1965). Lower federal courts have extended it to civil actions prosecuted by the Government. See Pizzarello v. United States, 408 F.2d 579, 585-586 (2d Cir. 1969) (tax assessment ease); Powell v. Zuckert, 125 U.S.App.D.C. 55, 366 F. 2d 634, 640 (1966) (discharge proceeding against government employee) ; Rogers v. United States, 97 F.2d 691 (1st Cir. 1938) (action to recover customs duties).

7 . The significance of this distinction is pointed up by the Supreme Court’s decision in Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), where the Court held that it would be contrary to modern penological policies to extend to a convicted criminal offender the right to confront the witnesses against him in post-trial sentencing procedures. But see Verdugo v. United States, 402 F.2d 599, 610-613 (9th Cir. 1968).

8 . See Hyser v. Reed, supra, 318 F.2d at 243; United States v. Hallman, 365 F.2d 289, 291 (3d Cir. 1966) ; Brown v. Kearney, 355 F.2d 199 (5th Cir. 1966) (per curiam); Martin v. United States, 183 F.2d 436, 439 (4th Cir.), cert, denied, 340 U.S. 904, 71 S.Ct. 280, 95 L.Ed. 654 (1950) (probationer).

9 . See Abel v. United States, 362 U.S. 217, 240, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960).

10 . 18 U.S.C. § 242 (Supp. IV, 1965-68) imposes a fine of not more than $1,000 and/or imprisonment for not more than one year upon anyone who, acting under color of law, subjects another to a deprivation of rights. Cf. 18 U.S.C. § 2236 (1946) (similar penalties for unlawful search by federal officer).

New York Penal Law § 195.00 (McKinney’s Consol.Laws, c. 40, 1967) provides that a public servant is guilty of misconduct, a class A misdemeanor, whenever, “with intent to * * * deprive another person of a benefit: 1. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized * *

One who has been subjected to unlawful search and seizure may sue under 42 U.S.C. § 1983 (1964) or bring a state damage action for trespass.