People v. Hale, 1999 N.Y. Int. 0100 (June 10, 1999).




Whether a probationer's consent to the search of his person, vehicle, and place of abode was voluntary when the consent to search and seizure was manifested as a condition of a negotiated plea and sentence agreement.


Yes. The consent provision in the plea bargain was a lawful basis for consent to the search and subsequent seizure of the evidence used to bring the charges in this appeal.


Defendant was convicted of criminally negligent homicide for having caused the death of a young woman when he hit her with his motor boat, which he had been operating while impaired. Defendant, prosecution and the Court entered into a negotiated plea and sentence agreement. Under the plea bargain, the pleaded guilty and waived his right to appeal, while the court imposed a sentence consisting of a strictly supervised probation. The terms of the probation included drug testing, rehabilitative drug treatment, and a consent provision permitting the Probation Officer to conduct a search of the defendant's vehicle and home.

Defendant tested positively for drugs on four occasions over the next several months. Ten months into the probationary period, the Probation Officer received a report that defendant had been selling drugs out of his home. In response, the Probation Officer conducted a search of defendant's home, vehicle, and person. He discovered firearms, illicit drugs, and drug paraphernalia, resulting in charges for drugs and weapons possession.

The defendant moved to suppress this evidence on the grounds that the search violated his constitutional and statutory rights. He argued that, in the absence of exigent circumstances, the Probation Officer should have obtained either a search warrant, voluntary and contemporaneous consent from the probationer, or a CPL 410.50(3) search order from the court. He further claimed that the search consent provision in his terms of probation was not a sufficient basis for consent to the search.

The Supreme Court granted the defendant's motion to suppress, but Appellate Division reversed. The Court of Appeals here affirmed.

The search of a probationer's home carries a constitutional requirement of reasonableness. According to the Court, the probationer's reasonable expectation of privacy is relative to his status as a probationer in the legal custody of the Court. He was thus entitled to a lesser standard of privacy from police searches than "a law-abiding citizen who is enjoying a quiet evening at home."

While the issue of the constitutional validity of a consent provision as the basis for the search of a probationer's home had not previously been determined in New York, the Court noted that such provisions had passed constitutional muster in other jurisdictions. The Court found that the possibility of a search was tailored to the offense as well as the purpose of the probation, which was to keep the defendant free of drugs. The consent to search provision was reasonably related to the defendant's rehabilitation.

The Court rejected defendant's contention that the Probation Officer should have obtained a CPL 410.50(3) court order in the absence of a warrant, exigent circumstances, or voluntary consent. It held that while CPL 410.50(3) authorizes the search of a probationer's home, it does not preempt the type of search at issue based on consent.

The Court further rejected defendant's contention that a search based on the consent provision was the result of coercion and was involuntary as a matter of law. While the Court recognized that the terms of such a negotiated sentence agreement could not be said to be completely voluntary, it declined to view the defendant's counseled agreement to the terms involuntary as a matter of law. In fact, defendant sought the probation agreement as a more desirable alternative to physical confinement. The agreement, by its very nature, involved trade-offs and obligations, but remained voluntary, knowing and intelligent under the circumstances. As such, it provided a sufficient constitutional basis for the search.