Brooklyn Heights

Parole officer’s presence was not sufficient for search of parolee’s home

September 26, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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The Brooklyn Appellate Division has granted the suppression of evidence found in a parolee’s home after it was determined that the presence of a parole officer alone, without any reason for the visit, was not sufficient to justify a search.

In 2007, detectives were given a tip that Benjamin Marcial, on parole for criminal sale of a controlled substance, was responsible for a series of burglaries within Brooklyn. Police detectives contacted Marcial’s parole officer and asked that she accompany them to Marcial’s apartment, fully aware that the purpose of the visit was to determine whether or not Marcial was a viable suspect.

Upon arriving at Marical’s door, the parole officer informed him that she was there merely to conduct a home visit and that the accompanying police detectives were simply working with her. The truth was the reverse — that it was the parole officer who was working with the detectives.  Marcial, acknowledging the presence of law enforcement officers, granted them entry into his home, where a number of items reported stolen were found. Marcial was subsequently taken to the police station, where he confessed to committing the burglaries.

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Convicted of burglary, Marcial appealed, arguing that he did not give consent to the search of his home. He further argued that the detectives’ entry into his apartment was an unlawful police intrusion.  As a parolee, Marcial is “obligated to allow his parole officer to enter his home to conduct a home visit and conduct a related search of his residence,” the Appellate Division panel noted in its per curium decision.   

Brooklyn prosecutors argued that “the warrantless search was reasonable under the Fourth Amendment because [Marcial], as a parolee, had a diminished expectation of privacy, and the parole officer had the lawful authority to enter [Marcial’s] residence, accompanied by the detectives, because the entry was reasonably and rationally related to her parole duties.”

While there is a requirement to allow a parole officer entry for a routine home visit, consent to search the home cannot be presumed when the officer’s entry is made under false representation. In Marcial’s case, his parole officer did not inform him that she was assisting the police in their search for evidence to implicate Marcial in the burglaries.

Marcial did not voluntarily consent to the entry and search of his home, the court ruled. Rather, the court found, he merely acquiesced to the authority of his parole officer. As such, the appellate panel determined that the prosecution “failed to prove the lawfulness of the entry into [Marcial’s] apartment.”

Finding that the search of Marcial’s home was unlawful, all evidence discovered during the search was deemed “fruit of an illegal seizure” and therefore inadmissible.

Alexis Ascher and Paul Skip Laisure of Appellate Advocates represented Marcial. A spokesperson from the Brooklyn D.A.’s office said they are reviewing the Appellate Panel’s decision.

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