United States v. Julius, No. 08-4267-cr (2d Cir. June 11, 2010) (Pooler, Hall, CJJ, Sweet, DJ)
Here, the district court granted the defendant’s motion to suppress a gun seized during Julius’ arrest on a parole violation. on the government’s appeal, the circuit remanded for reconsideration in light of Herring v. United States, 129 S.Ct. 695 (2009).
In 2007, Julius violated the conditions of a term of special parole imposed after a state court conviction in Connecticut. He had failed to attend court-mandated counseling sessions and had changed his residence but refused to disclose his new address to his parole officer.
The officer finally found Julius at his girlfriend’s house, where the officer, accompanied by another parole officer and a deputy marshal found him lying on a bed in a back bedroom. They arrested him without incident. As an officer removed him from the room, in handcuffs, the marshal searched the bed to see if Julius had discarded any contraband. He partially lifted the mattress and found a gun. With that, the officers contacted the local police department for assistance. Local police arrived and secured consent to search the entire apartment; returning to the same mattress, they lifted it completely and found ammunition.
The district court held that the ammunition was properly obtained as the product of a consent search, but that the gun was improperly seized – the marshal’s the initial search under the mattress was not an incident search because Julius was already handcuffed and the mattress was plainly beyond his control. It also held that Julius’ status as a parolee did not legitimize the search because the marshal lacked even reasonable suspicion.
On appeal, the circuit began by surveying the current state of the law with respect to the Fourth Amendment rights of parolees and identifying the central area of dispute here: Julius’ expectation of privacy as a parole absconder.
Having identified the issue, however, the court declined to resolve it. Instead, it remanded the case for reconsideration under Herring. In Herring, the defendant was erroneously arrested after “negligent bookkeeping” by the police department resulted in an officer’s erroneous belief that there was an outstanding warrant for his arrest. The Supreme Court held that this violated the Fourth Amendment, but that the exclusionary rule should not apply because it would not serve the purpose of “deterring Fourth Amendment violations in the future.” According to the circuit, Herring requires a district court to conduct a “cost/benefit analysis” in deciding whether “the deterrent effect of applying the exclusionary rule outweighs the cost of the rule’s application.” This balance should consider “whether the degree of police culpability in this case rose beyond mere administrative negligence such that application of the rule is necessary to compel respect for the Fourth Amendment’s guarantees.”