09-1399-cr
U nited States v. Viserto


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMM ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUMM ARY ORDER”). A PARTY CITING TO A SUMM ARY ORDER M UST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 3 rd day of September, two thousand ten.

PRESENT:         JON O. NEWMAN,
                 REENA RAGGI,
                         Circuit Judges,
                 JED S. RAKOFF,
                         District Judge.*
---------------------------------------------------------
UNITED STATES OF AMERICA,

                            Appellee,
                       v.                                             No. 09-1399-cr

ANTHONY VISERTO, a.k.a. Anthony Ricco,

                         Defendant-Appellant.
---------------------------------------------------------
APPEARING FOR APPELLANT:                          BRUCE R. BRYAN, Syracuse, New York;
                                                  ANTHONY VISERTO, pro se, Stormville, New
                                                  York.

APPEARING FOR APPELLEE:                           GWENDOLYN CARROLL, Assistant United


           *
         District Judge Jed S. Rakoff of the United States District Court for the Southern
District of New York, sitting by designation.
                                           States Attorney (Ransom P. Reynolds, Assistant
                                           United States Attorney, on the brief), for Richard
                                           S. Hartunian, United States Attorney for the
                                           Northern District of New York, Syracuse, New
                                           York.

       Appeal from a judgment of the United States District Court for the Northern District

of New York (Thomas J. McAvoy, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered April 3, 2009, is AFFIRMED.

       Defendant Anthony Viserto pleaded guilty to possession of a firearm by a convicted

felon, see 18 U.S.C. §§ 922(g)(1), 924(e), reserving his right to appeal the denial without a

hearing of his motion to suppress the firearm seized by New York state parole officers while

executing a parole warrant for Viserto’s arrest at the home of his wife. We review the district

court’s factual findings on a motion to suppress for clear error and its conclusions of law de

novo. See, e.g., United States v. Elmore, 482 F.3d 172, 178 (2d Cir. 2007). An evidentiary

hearing on a motion to suppress “ordinarily is required if the moving papers are sufficiently

definite, specific, detailed, and nonconjectural to enable the court to conclude that contested

issues of fact going to the validity of the search are in question.” In re Terrorist Bombings

of U.S. Embassies in E. Africa, 552 F.3d 157, 165 (2d Cir. 2008) (internal quotation marks

omitted). We review the district court’s denial of a request for such a hearing for abuse of

discretion. See United States v. Levy, 377 F.3d 259, 264 (2d Cir. 2004). In applying these

standards, we assume the parties’ familiarity with the facts and procedural history of this

                                              2
case, which we reference only as necessary to explain our decision to affirm.

       1.     The Motion To Suppress

       The arguments Viserto advances, both through counsel and pro se, in support of his

motion to suppress challenge the legality of (1) the officers’ entry into his wife’s home, and

(2) their search of the jacket from which the charged firearm was seized. We address each

challenge in turn.

              a.      The Initial Entry

       Viserto argues that parole officers could not enter his wife’s residence based only on

the parole warrant for his arrest but instead were required to obtain a search or arrest warrant

issued by a judicial officer. The argument fails for several reasons.

       In Samson v. California, 547 U.S. 843 (2006), the Supreme Court upheld the

warrantless search of parolees consistent with consented-to conditions of parole. At the time

of Viserto’s 2006 parole from New York state prison (after serving thirty years for murder),

he agreed in writing to searches of his person, residence, and property. In giving such

consent, Viserto acknowledged that his “residence” meant wherever he slept each night.1




       1
         Although Viserto argues that these conditions of parole impermissibly expanded the
definition of residence and, therefore, the officers’ authority to conduct warrantless searches,
we are not persuaded. Constitutional rights may be waived provided the action is knowing
and voluntary. See, e.g., Miranda v. Arizona, 384 U.S. 436 (1966); accord Schneckloth v.
Bustamonte, 412 U.S. 218, 248 (1973) (holding that consent to search must be given
voluntarily). The conditions of parole ensured Viserto’s knowledge of the premises that
would constitute his “residence” for purposes of the consent to search.

                                               3
The record indicates that, at the time of the challenged entry, Viserto was not only sleeping

at his wife’s home but also that he had abandoned the Bronx site that was his residence at the

time he violated parole and became a fugitive from supervision. Under these circumstances,

even if Viserto has standing to challenge the entry of his wife’s home, he cannot claim a

legitimate expectation of privacy against a parole search in any premises he used as a

residence, see id. at 852, particularly where the purpose of the entry was not “arbitrary,

capricious, or harassing,” id. at 856 (interpreting California law), but to execute an arrest

warrant for a parole fugitive.

       Indeed, this purpose makes it unnecessary for us to decide in this case whether

Samson supplants our past precedent assessing the reasonableness of a parole search by

reference to its relationship to parole duties. See United States v. Newton, 369 F.3d 659, 665

(2d Cir. 2005); United States v. Grimes, 225 F.3d 254, 259 n.4 (2d Cir. 2000); People v.

Huntley, 43 N.Y.2d 175, 183, 401 N.Y.S.2d 31, 35 (1977). The arrest of a parole violator

and fugitive was clearly and substantially related to the important parole duty to “protect[]

the public from the commission of further crimes.” People v. Huntley, 43 N.Y.2d at 181, 401

N.Y.S.2d at 34.

       Nor need we decide the question left open in Steagald v. United States: “whether the

subject of an arrest warrant can object to the absence of a search warrant when he is

apprehended in another person’s home.” 451 U.S. 204, 219 (1981). Doubtful as it is that any

arrestee could raise such an objection, see United States v. Snype, 441 F.3d 119, 133 (2d Cir.

                                              4
2006), Samson clearly precludes Viserto from doing so because, under the conditions of his

parole, he had consented to the search of any premises that he used as a residence.

        Viserto’s challenge to the officers’ factual basis for believing that his wife’s home was

his residence merits little discussion in light of evidence that (1) a known informant advised

officers on December 31, 2007, that Viserto had recently moved into his wife’s home in

Cicero, New York; (2) officers confirmed that the site identified by the informant was leased

by Viserto’s wife; (3) Viserto had officially resided with his wife – albeit at a different

location – for seven months of the time he was on parole; and (4) Viserto had abandoned the

Bronx apartment that was his last known residence before he became a fugitive from parole.

The district court correctly concluded that these facts were sufficient to support a reasonable

belief that, at the time of the January 2, 2008 entry, Viserto was again residing with his wife.

        Accordingly, we identify no merit in Viserto’s challenge to the entry of his wife’s

home.

b.      Search of the Jacket

        Viserto contends that even if he has no basis for challenging the officers’ entry into

his wife’s home, the search of the jacket resulting in seizure of a firearm was constitutionally

unreasonable. We disagree. To the extent Viserto disclaimed ownership of the jacket before

it was searched, he forfeited any claim to a legitimate expectation of privacy in the garment.

See, e.g., United States v. Torres, 949 F.2d 606, 608 (2d Cir. 1991) (“It is well settled that

an otherwise legitimate privacy interest may be lost by disclaiming or abandoning property,

                                                5
especially when actions or statements disavow any expectation of privacy.”). To the extent

Viserto subsequently acknowledged ownership of the jacket, his consent to the search of his

property, as a condition of parole, precludes him from arguing that the warrantless search

violated any reasonable expectation of privacy. See Samson v. California, 547 U.S. at 852.

Nor can Viserto claim that the search of a man’s jacket was arbitrary or insufficiently related

to the parole duties given that the officers had just arrested Viserto in his underwear and were

attempting to identify clothes that he could put on to be taken outdoors. See id. at 856;

People v. Huntley, 43 N.Y.2d at 183, 401 N.Y.S.2d at 35. Even outside the context of

parole, we have recognized officers’ duty to clothe arrestees when taking them into custody,

and we have held that the seizure of contraband discovered in executing this duty does not

violate the Fourth Amendment. See United States v. DiStefano, 555 F.2d 1094, 1101 (2d

Cir. 1977); United States v. Titus, 445 F.2d 577, 579 (2d Cir. 1971); see also United States

v. Ivezaj, 568 F.3d 88, 97-98 (2d Cir. 2009); see also United States v. Ricks, 817 F.2d 692,

696 (11th Cir. 1987) (holding that jacket not initially in defendant’s grab area became

legitimate object of search when agents would necessarily place it within that area by giving

it to defendant to put on).2




       2
         Viserto argues that “law enforcement may not create a need to search property by
bringing a defendant in proximity” with it. Appellant’s Br. at 38. But there is no reason to
think that agents were engaged in any such conduct when, upon finding two jackets available
for him to wear, they assumed that Viserto would wear the man’s jacket rather than the
woman’s.

                                               6
       Accordingly, we identify no error in the district court’s ruling that the search of the

jacket did not warrant suppression of the seized gun.

       2.     Evidentiary Hearing

       In urging a different conclusion, Viserto faults the district court for denying his

suppression motion without conducting a hearing. We have reviewed the record, and we

identify no material factual dispute requiring a hearing. Insofar as Viserto asserts that “no

one ever . . . ascertained if [the jacket from which the gun was seized] was [his],” such a

conclusory assertion – first submitted to the district court after it denied the suppression

motion – did not demand a hearing in light of sworn uncontradicted evidence that Viserto

disclaimed ownership of the jacket before seizure of the gun and then acknowledged

ownership thereafter. Nor can Viserto rely on papers submitted to the district court only after

his guilty plea to demonstrate abuse of discretion in the decision not to hold a hearing.

       In sum, we identify no merit in Viserto’s hearing challenge.

       We have considered Viserto’s other arguments on appeal and conclude that they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




                                              7
