     12-2584-cr
     United States v. Bernacet

 1                  UNITED STATES COURT OF APPEALS
 2                      FOR THE SECOND CIRCUIT
 3
 4
 5                         August Term, 2012
 6
 7      (Argued: May 1, 2013            Decided: August 1, 2013)
 8
 9                      Docket No. 12-2584-cr
10
11
12                   UNITED STATES OF AMERICA,
13
14                                                          Appellee,
15
16                               -v.-
17
18                         RONNIE BERNACET,
19
20                                             Defendant-Appellant.
21
22
23
24   Before:
25              SACK, WESLEY, AND CARNEY, Circuit Judges.
26
27
28
29
30
31   Appellant Ronnie Bernacet appeals from a judgment of
32   conviction, entered by the United States District Court for
33   the Southern District of New York (Laura Taylor Swain,
34   Judge), of possessing a handgun after a felony conviction in
35   violation of 18 U.S.C. § 922(g)(1). Bernacet asserts that
36   (1) the search of law enforcement databases at a traffic
37   checkpoint rendered that stop an unreasonable seizure of his
38   person in violation of the Fourth Amendment; (2) officers
39   lacked probable cause to believe that he was violating his
40   parole; and (3) because a parole violation does not provide
41   a lawful basis for a warrantless arrest in New York, his

                                   1
 1   arrest for a parole violation was unconstitutional. We hold
 2   that (1) the de minimis additional time taken to search a
 3   database did not render the traffic checkpoint an
 4   unreasonable seizure; (2) officers had sufficient probable
 5   cause to believe that Bernacet was violating his curfew; and
 6   (3) the New York law prohibiting warrantless arrests for
 7   parole violations that are not themselves crimes or offenses
 8   is a state “arrest rule” subject to Virginia v. Moore, 553
 9   U.S. 164 (2008), and Bernacet’s arrest was not
10   unconstitutional. We therefore AFFIRM the district court’s
11   judgment.
12
13        AFFIRMED.
14
15
16
17
18             DARRELL B. FIELDS, Appeals Bureau, Federal
19                  Defenders of New York, Inc., New York, NY, for
20                  Appellant Ronnie Bernacet.
21
22             MATTHEW L. SCHWARTZ, Assistant United States
23                  Attorney (Iris Lan, Assistant United States
24                  Attorney, on the brief), for Preet Bharara,
25                  United States Attorney for the Southern
26                  District of New York, New York, NY, for
27                  Appellee United States of America.
28
29
30
31   WESLEY, Circuit Judge:
32
33        Ronnie Bernacet appeals from a judgment of conviction

34   entered against him in the United States District Court for

35   the Southern District of New York (Laura Taylor Swain,

36   Judge) following a one-day bench trial on October 25, 2011.

37   Bernacet was convicted of one count of possessing a firearm

38   following a conviction for a felony, in violation of 18


                                   2
 1   U.S.C. § 922(g)(1).   The district court sentenced Bernacet

 2   to 57 months’ imprisonment and three years’ supervised

 3   release.

 4       Bernacet asserts that (1) the use of a criminal history

 5   database search at a routine traffic checkpoint rendered the

 6   stop an unconstitutional seizure of his person; (2) the

 7   police lacked probable cause to believe that he was

 8   violating his parole; and (3) warrantless arrests for parole

 9   violations are unconstitutional in New York.   We disagree

10   and find that: (1) the criminal history database search was

11   a de minimis extension of the constitutional traffic

12   checkpoint; (2) the police had probable cause to believe

13   that Bernacet was violating his parole; and (3) Bernacet’s

14   arrest was constitutional, notwithstanding state laws

15   prohibiting officers from arresting parole violators without

16   a warrant in the absence of a crime or offense.   We

17   therefore affirm the judgment of the district court.

18

19                             Background

20       On October 5, 2010, New York Police Department (“NYPD”)

21   officers conducting a two-hour scheduled traffic-safety

22   vehicle checkpoint in the Bronx stopped motorists to check


                                   3
 1   their driver’s licenses and vehicle registrations.       They

 2   collected licenses from only the drivers and ran each

 3   driver’s license through NYPD’s “FINEST” system using a

 4   mobile device terminal (“MDT”) in the squad car.       This

 5   “generate[d] a report from the New York Statewide Police

 6   Information Network (‘NYSPIN’), which includes data from

 7   multiple sources, including” Federal Bureau of Investigation

 8   (“FBI”) databases, New York State law enforcement records,

 9   and New York Department of Motor Vehicle (“DMV”) records.

10   Callahan Dec.      “An officer cannot . . . elect to run a

11   FINEST search from an MDT through some but not all of these

12   databases.”      Id.   It typically took less than one minute to

13   run each of the license checks conducted at the stop. Id.

14   Officer Patrick Callahan, who had conducted “approximately

15   100 vehicle safety checkpoints at that location” during his

16   22 years with the NYPD, ran licenses through the FINEST

17   system.   Id.     The checkpoint resulted in two felony arrests,

18   including Bernacet’s.

19       Bernacet pulled up to the checkpoint at approximately

20   11:45 p.m.      He gave his driver’s license to Officer Ramon

21   Garcia, who passed it to Callahan.      When he ran Bernacet’s

22   license, Callahan noticed that Bernacet was on parole.


                                       4
 1   Knowing that parolees in New York customarily have 9:00 p.m.

 2   curfews, he instructed Garcia to “check it out.”       Id.

 3   Garcia confronted Bernacet about his suspected parole

 4   violation.    Garcia contends that Bernacet replied that “he

 5   forgot and was sorry.”    Garcia Dec.    Bernacet “has claimed

 6   variously that he replied, ‘What, I’m on violation of

 7   parole?’ and ‘I don’t have a curfew my parole officer know I

 8   am here [sic].’”     United States v. Bernacet, No. 11-cr-

 9   00107-LTS, 2011 U.S. Dist. LEXIS 101258, at *3 (S.D.N.Y.

10   Sept. 7, 2011) (citations omitted).

11       Garcia asked Bernacet to step out of the car.       Garcia

12   maintains that he then saw a handgun protruding from

13   Bernacet’s pocket; Bernacet alleges that the firearm was not

14   discovered until Garcia frisked him.      Id.   Garcia then

15   arrested Bernacet.    A frisk incident to the arrest revealed

16   a gravity knife in addition to the loaded, .25-caliber Armi-

17   Galesi-Bresci semi-automatic pistol.      After receiving his

18   Miranda warnings, Bernacet made several incriminating

19   statements.    Id.

20

21                               Discussion

22       Bernacet contends that the officers (1) should not have

23   searched law enforcement databases at a traffic safety

                                     5
 1   checkpoint, (2) did not have probable cause to believe that

 2   he was violating his parole, and (3) were not authorized

 3   under state law to arrest him for a parole violation, and

 4   that therefore his arrest was unconstitutional.      Success on

 5   any of these claims would require suppression of the handgun

 6   and incriminating statements Bernacet made pursuant to his

 7   arrest.   We hold that the NYSPIN search was reasonable; the

 8   officers had probable cause to believe that Bernacet was

 9   violating his parole; and his warrantless arrest was not

10   unconstitutional.     The district court’s decision to admit

11   the handgun and Bernacet’s incriminating statements was

12   therefore proper.     Accordingly, we affirm Bernacet’s

13   conviction.

14   I.        Use of Drivers’ Licenses to Search Law Enforcement
15             Databases at the Traffic Stop Was Reasonable
16
17        Bernacet does not challenge the legality of the traffic

18   stop itself, and he does not argue that the search of law

19   enforcement databases unconstitutionally infringed his

20   privacy interests.1    Rather, he contends that the NYPD’s

          1
            We construe Bernacet’s challenge as related to the
     constitutionality of the law enforcement database search during
     an otherwise constitutional traffic stop, which “effectuate[d] a
     seizure within the meaning of the Fourth Amendment.” City of
     Indianapolis v. Edmond, 531 U.S. 32, 40 (2000). Insofar as he
     intends to challenge the use of the NYSPIN database as a search,
     and not because it prolonged the seizure, this claim is devoid of
     merit. “[T]he government’s matching of a lawfully obtained
     identification record against other records in its lawful

                                     6
 1   search of law enforcement databases at a traffic stop was

 2   constitutionally unreasonable because it was not closely

 3   related to the purpose of the checkpoint.       In light of the

 4   de minimis intrusion on motorists that was imposed by the

 5   law enforcement database search, the traffic stop as

 6   conducted was constitutional.

 7        A.   The Government’s Interests Outweighed the Drivers’
 8             Interests in This Fixed, Traffic-Safety Checkpoint

 9        The Supreme Court has endorsed the government’s

10   interest in conducting a fixed checkpoint to monitor traffic

11   safety as a benefit that outweighs drivers’ privacy

12   interests.   In Delaware v. Prouse, 440 U.S. 648, 663 (1979),

13   the Court struck down roving stops of automobiles without

14   any particularized suspicion.       However, the Court suggested

15   that “[q]uestioning of all oncoming traffic at roadblock-

16   type stops” was a lawful alternative method to provide for

17   traffic safety.   Id.   In City of Indianapolis v. Edmond, 531

18   U.S. 32, 47 (2000), the Court struck down drug interdiction

19   checkpoints while noting that its holding “d[id] nothing to

20   alter the constitutional status of . . . the type of traffic


     possession does not infringe on an individual’s legitimate
     expectation of privacy.” Boroian v. Mueller, 616 F.3d 60, 67
     (1st Cir. 2010) (collecting cases). Police officers are
     permitted to look up anyone’s parole status at any time; the only
     intrusion into privacy interests here was the requirement that
     motorists wait while the police did so.

                                     7
 1   [safety] checkpoint that we suggested would be lawful in

 2   Prouse.”

 3        In this case, the traffic safety checkpoint was

 4   conducted at an “accident prone location in the impact

 5   zone,” and officers processed 49 cars in two hours.      Vehicle

 6   Checkpoint Form.2   The waiting times that each car

 7   experienced are fairly characterized as “brief” and “no more

 8   onerous than [delays] that typically accompany normal

 9   traffic congestion.”   Illinois v. Lidster, 540 U.S. 419, 426

10   (2004); see also Mich. Dep’t of State Police v. Sitz, 496

11   U.S. 444, 452 (1990)(stating that the “‘objective’

12   intrusion” on motorists subjected to checkpoint stops is

13   “measured by the duration of the seizure and the intensity

14   of the investigation”).    This traffic safety checkpoint was

15   thus lawful, and is not on its own challenged by Bernacet.

16        B.    Gathering Additional Information Did Not Make the
17              Stop Unconstitutional
18
19        Bernacet argues, however, that the addition of law

20   enforcement database searches renders unconstitutional the

21   otherwise lawful traffic checkpoint.     The search of the


          2
            We note that the record on appeal seems to indicate that
     65 NYSPIN checks took place (from 10:22 p.m. to 11:59 p.m.), 49
     vehicles were pulled over, and no passengers’ records were
     searched.

                                     8
 1   NYSPIN databases took approximately one minute per motorist;

 2   of that one minute, some portion was consumed by the search

 3   of DMV records.3   Dist. Ct. Doc. 20-4.    The fact that

 4   “ordinary criminal wrongdoing,” Edmond, 531 U.S. at 38, was

 5   uncovered in the course of an otherwise lawful checkpoint

 6   designed for a permissible purpose does not invalidate the

 7   checkpoint or the arrest.    Lidster, 540 U.S. at 423.     The

 8   police encountered information suggesting that a parole

 9   violation was ongoing; the Fourth Amendment did not require

10   them to ignore this information merely because the officers’

11   primary focus was on traffic safety.      “The law does not

12   require the police to ignore evidence of other crimes in

13   conducting legitimate roadblocks.”     United States v. Lopez,

14   777 F.2d 543, 547 (10th Cir. 1985); see also United States

15   v. Morales, 788 F.2d 883, 886 (2d Cir. 1986).

16        The duration of the stop was not significantly

17   increased by the fact that the MDTs search multiple

18   databases, including law enforcement databases.      Although

19   our decision in United States v. Harrison, 606 F.3d 42 (2d

20   Cir. 2010), related to traffic stops instead of checkpoints,

          3
            Although it is difficult to discern the duration of each
     search, the record reflects, for example, that from 11:23 p.m. to
     11:29 p.m. Callahan ran eleven separate license checks through
     the MDT. Dist. Ct. Doc. 20-4.

                                     9
 1   it applies with equal force in this context, where the

 2   initial stop is not challenged.     In Harrison, we wrote that

 3   “an officer’s inquiries into matters unrelated to the

 4   justification for the traffic stop . . . do not convert the

 5   encounter into something other than a lawful seizure, so

 6   long as those inquiries do not measurably extend the

 7   duration of the stop.”   Id. at 45 (internal quotation marks

 8   and alteration omitted); see also Lidster, 540 U.S. at 427-

 9   28.

10         Finally, we note that Bernacet does not argue that the

11   checkpoint was illegal in itself or that the stated purpose

12   of protecting traffic safety in an accident prone location

13   was pretextual.   He argues, instead, that it was improper

14   for the police, at a lawfully conducted traffic safety

15   checkpoint, to search for parole status in addition to DMV

16   records.   If he were able to establish that the checkpoint

17   was actually conducted for basic crime control purposes and

18   not for vehicle safety reasons, then we would likely find

19   the checkpoint unconstitutional.     Edmond, 531 U.S. at 41.

20   II.        Officers Had Probable Cause to Believe that
21              Bernacet Was Violating His Parole
22
23         Bernacet contends that the officers lacked probable

24   cause to believe that he was violating his parole because

                                    10
 1   they had no evidence that he had a curfew as a condition of

 2   his parole.     Bernacet points out that, although he did have

 3   a 9:00 p.m. curfew, curfews are not a mandatory condition of

 4   parole in New York State.     N.Y. State Parole Handbook 2010

 5   at 21-22.     He avers that it was unreasonable for the police

 6   to assume that he had a 9:00 curfew as a condition of his

 7   parole.     We disagree.

 8        Callahan had probable cause if “the facts and

 9   circumstances within [his] knowledge and of which he had

10   reasonably trustworthy information were sufficient to

11   warrant a prudent man in believing that” Bernacet was

12   committing a parole violation.4      Amore v. Novarro, 624 F.3d

13   522, 536 (2d Cir. 2010) (alterations omitted) (quoting Beck


          4
            Insofar as Callahan had probable cause, it transferred to
     Garcia when Callahan told him that Bernacet was violating his
     curfew. We do not rely on Bernacet’s response when Garcia
     confronted him regarding his parole violation, though it may have
     contributed to Garcia’s probable cause calculation. Garcia
     reported that Bernacet apologized for the violation; Bernacet has
     provided different and inconsistent versions of his reply.
     United States v. Bernacet, No. 11-cr-107-LTS, 2011 U.S. Dist.
     LEXIS 101258, at *3 (S.D.N.Y. Sept. 7, 2011). We are puzzled as
     to why the district court declined to make a factual finding as
     to Bernacet’s response. Id. at *2-3.
          Similarly, the district court declined to credit either
     Garcia’s “claims that a gun was visibly protruding from
     [Bernacet’s] back pocket” or Bernacet’s assertion “that his back
     pockets were deep enough that the gun was not visible” until he
     was frisked. Id. at *3. We assume for purposes of this appeal
     that Garcia could not rely on the visibility of the handgun to
     establish probable cause.

                                     11
 1   v. Ohio, 379 U.S. 89, 91 (1964)).     The district court

 2   appears to have based its holding on the facts that Callahan

 3   “knew that [Bernacet] was on parole.     He knew that parolees

 4   are customarily subject to 9:00 p.m. curfew as a condition

 5   of their parole.     He also knew that, when [Bernacet] was

 6   stopped at the checkpoint, the time was approximately 11:30

 7   p.m.”   Bernacet, 2011 U.S. Dist. LEXIS 101258, at *7.

 8       Bernacet argues that there was no probable cause

 9   because (1) curfew is not a mandatory condition of parole

10   and (2) the NYSPIN search result screenshot submitted to the

11   court did not contain information related to the terms of

12   Bernacet’s parole.     Otherwise, Bernacet “has not challenged

13   the reasonableness of Officer Callahan’s belief, established

14   over the course of 20 [sic] years of experience, that a 9:00

15   p.m. curfew is customarily imposed on parolees.”     Id.

16   Although he had the opportunity, Bernacet declined to cross-

17   examine Callahan about his affidavit.     Callahan’s affidavit

18   is the only evidence on the record regarding the likelihood

19   that a New York parolee had a 9:00 p.m. curfew.

20       We read Callahan’s affidavit to suggest that a high

21   percentage of New York parolees have 9:00 p.m. curfews.       No

22   evidence adduced at the suppression hearing suggests


                                     12
 1   otherwise.    Callahan’s 22-year NYPD experience that “New

 2   York parolees customarily have a curfew [of] 9:00 p.m.,”

 3   Callahan Dec., which Bernacet declined to challenge given

 4   the opportunity, constitutes “reasonably trustworthy

 5   information . . . sufficient to warrant a prudent man in

 6   believing” that such a curfew existed in this case.      Amore,

 7   624 F.3d at 536.    The report from the NYSPIN database firmly

 8   established Bernacet’s parole status and his presence on the

 9   road shortly before midnight established that he was

10   breaking a 9:00 p.m. curfew if he had one.    Taken together,

11   this evidence was sufficient to provide Callahan with

12   probable cause to believe that Bernacet was violating his

13   parole.

14   III.       Illegal Warrantless Arrests for Parole Violations
15              Are not Unconstitutional Seizures
16
17          Bernacet contends that the fruits of a search incident

18   to a warrantless arrest for a parole violation are

19   inadmissible because New York has forbidden warrantless

20   arrests for parole violations that are not independently

21   crimes or offenses.    We agree that Bernacet’s arrest was

22   illegal under New York law but conclude that it was

23   constitutionally permissible.    The exclusionary rule

24   therefore does not apply.

                                     13
 1          A.   New York Law Prohibited Bernacet’s Warrantless
 2               Arrest for Violating His Curfew
 3
 4          The district court determined that Bernacet’s arrest

 5   was permissible under New York law.      Bernacet, citing People

 6   v. Bratton, 8 N.Y.3d 637 (2007), contends that the district

 7   court erred.    We agree that Bratton extends to arrests by

 8   police officers and that Bernacet’s arrest was therefore

 9   unlawful under New York law.

10          In Bratton, the New York Court of Appeals held that

11   warrantless arrests by parole officers for parole violations

12   committed in their presence violate New York law if the

13   parole violation does not otherwise constitute a crime or

14   offense.    Id. at 641.    Bratton, an Ithaca-based parolee,

15   refused to permit two parole officers to enter his apartment

16   to obtain a sample for a urinalysis test.      Id. at 639.

17   Bratton attempted to leave; the parole officers arrested

18   him.    Id. at 639-40.    Relying heavily on the legislative

19   history of the New York statutes permitting parole officers

20   to make arrests, the Court of Appeals held that there was “a

21   considered legislative choice” constricting the warrantless

22   arrest authority of parole officers in New York.      Id. at

23   640-643.    The Court of Appeals held that refusal of

24   urinalysis was “not an offense within the meaning of section

                                      14
 1   10.00(1) of the [N.Y.] Penal Law . . . that would

 2   independently justify a peace officer in making a

 3   warrantless arrest if committed in his presence.”       Id. at

 4   643.       Bratton’s custody was therefore unlawful and his

 5   charge of resisting arrest was dismissed.       Id. at 641.

 6          Seeking to distinguish Bratton, the district court

 7   relied on its view that the statute authorizing parole

 8   officers to make warrantless arrests differs from that

 9   authorizing police officers to make warrantless arrests.

10   Bernacet, 2011 U.S. Dist. LEXIS 101258, at *9.       However,

11   “[t]he rules governing the manner in which a peace officer

12   may make an arrest, pursuant to section 140.25, are the same

13   as those governing arrests by police officers, as prescribed

14   in section[s] 140.15 [and 140.10].”       CPL N.Y. 140.27(1).

15   The statutes conferring warrantless arrest authority on

16   parole and police officers are identically worded:5 a police

17   officer or a parole officer “may arrest a person for [a]ny

18   offense when he has [probable] cause to believe that such

19   person has committed such offense in his presence.”       CPL

20   N.Y. 140.25(1)(a), 140.10(1)(a).


            5
            The only textual difference between the statutes is that
     CPL N.Y. 140.10(1)(a) permits a police officer to make an arrest
     when “he or she” has probable cause.

                                       15
 1       The authority to make a warrantless arrest for parole

 2   and police officers alike relies on New York’s definition of

 3   an “offense.”     See Bratton, 8 N.Y.3d at 643 (reading

 4   “offense” in CPL N.Y. 140.25(1)(a) to refer to N.Y. Penal L.

 5   § 10.00(1)).     The Bratton Court held that the only parole

 6   violations that are “offenses” for the purpose of this

 7   statute are those that “would independently justify” a

 8   warrantless arrest even if they were not a violation of

 9   parole.    Id.   Staying out later than 9:00 p.m. does not

10   qualify.    Bernacet’s arrest for his curfew violation was not

11   authorized by New York law.

12       B.     Bernacet’s Arrest Was Constitutionally Permissible

13       But, not every arrest that is illegal under state law

14   violates the United States Constitution.     See, e.g., United

15   States v. Wilson, 699 F.3d 235, 244 (2d Cir. 2012).       In

16   Whren v. United States, 517 U.S. 806, 815 (1996), the

17   Supreme Court held that plainclothes police officers were

18   constitutionally authorized to seize a vehicle and its

19   occupants based on probable cause that the driver had

20   committed a relatively minor traffic infraction,

21   notwithstanding state regulations that permitted such

22   officers to enforce traffic laws “only in the case of a


                                     16
 1   violation that is so grave as to pose an immediate threat to

 2   the safety of others.”     Id. (internal quotation marks

 3   omitted, emphasis retained).     The Court wrote, “[P]olice

 4   enforcement practices, even if they could be practicably

 5   assessed by a judge, vary from place to place and from time

 6   to time.   We cannot accept that the search and seizure

 7   protections of the Fourth Amendment are so variable, and can

 8   be made to turn on such trivialities.”     Id. (internal

 9   citation omitted).

10       Based in part on this reasoning, in Virginia v. Moore,

11   553 U.S. 164, 167 (2008), the Supreme Court upheld the

12   arrest of a driver for driving on a suspended driver’s

13   license, despite Virginia laws requiring the officers to

14   issue a summons instead of making an arrest when handling

15   such an infraction.     The Court held that “an arrest based on

16   probable cause but prohibited by state law” is

17   constitutional.   Id. at 166.    Bernacet maintains that Moore

18   does not apply to parole violations because not all such

19   violations are defined as “crimes” or “offenses” under New

20   York law, and further that parole violations should be

21   treated differently, as a constitutional matter, from other

22   types of infractions.     Neither argument is persuasive.


                                     17
 1               1.   Moore Applies to Arrests for Parole Violations

 2        Bernacet asks us to hold that Moore applies to

 3   “crimes,” “offenses,” and “violations,” but not to parole

 4   violations, which he asserts, are not all “offenses” or

 5   “crimes” under state law.     He points to several cases that

 6   use various terms to categorize the types of infractions

 7   that support a constitutionally valid arrest.6     Aside from

 8   semantics, however, he does not identify a basis to

 9   distinguish parole violations from other relatively minor

10   infractions that the Supreme Court has held can

11   constitutionally support an arrest.     These include minor

12   misdemeanors and traffic offenses.     For example, in Atwater

13   v. City of Lago Vista, 532 U.S. 318, 323 (2001), the Court

14   held that the Fourth Amendment does not forbid “a

15   warrantless arrest for a minor criminal offense, such as a

16   misdemeanor seatbelt violation punishable only by a fine.”

17   See also Moore, 553 U.S. at 167 (for driving on a suspended

18   license).

          6
            Bernacet directs us to, inter alia, Devenpeck v. Alford,
     543 U.S. 146, 152 (2004) (permitting warrantless arrests “where
     there is probable cause to believe that a criminal offense has
     been or is being committed”) (emphasis added); Marcavage v. City
     of New York, 689 F.3d 98, 109 (2d Cir. 2012)(same for an
     “offense”) (emphasis added); United States v. Delossantos, 536
     F.3d 155, 158 (2d Cir. 2008) (same for “a crime”) (emphasis
     added).

                                     18
 1       It is true that state substantive criminal law can

 2   render an arrest unconstitutional by altering the legal

 3   status of the underlying conduct.    For example, in New York

 4   police may constitutionally arrest a 21-year-old man based

 5   on probable cause to believe he has had sexual intercourse

 6   with a 16-year-old.   See N.Y. Penal Law § 130.25.    However,

 7   police could not constitutionally arrest the same 21-year-

 8   old man based on the same suspicions in Connecticut (where

 9   the age of consent is 16.   Conn. Gen. Stat. § 53a-71(a)(1)).

10       However, the Fourth Amendment does not incorporate

11   state procedural criminal law.     “[W]hile States are free to

12   regulate [warrantless] arrests however they desire, state

13   restrictions do not alter the Fourth Amendment’s

14   protections.”   Moore, 553 U.S. at 176.    The legality of

15   warrantless arrests for parole violations “var[ies] from

16   place to place and from time to time,” id. at 172 (internal

17   quotation marks omitted).   In fact, even New York permitted

18   such arrests before 1977.   See Bratton, 8 N.Y.3d at 642-43.

19   “Fourth Amendment protections are not ‘so variable.’”

20   Moore, 553 U.S. at 172 (quoting Whren, 517 U.S. at 815).

21       Under New York law, parole violations are not

22   “offenses” or “crimes” for the purpose of determining


                                   19
 1   whether officers are authorized to make a warrantless arrest

 2   of a person violating his parole.   But this limitation on

 3   the power to arrest does not mean that violating parole does

 4   not implicate New York substantive law.    The legality of

 5   Bernacet’s arrest at New York law therefore does not end, or

 6   even inform, the constitutional inquiry.   “Read together,

 7   Moore and Whren stand for the proposition that the Fourth

 8   Amendment does not generally incorporate local statutory or

 9   regulatory restrictions on seizures and that the violation

10   of such restrictions will not generally affect the

11   constitutionality of a seizure supported by probable cause.”

12   Wilson, 699 F.3d at 243.   Bernacet’s claim is of a

13   constitutional dimension; it cannot be measured with a state

14   law ruler.

15            2.    Bernacet’s Parole Violation Provided a
16                  Reasonable Ground for Arrest
17
18       Bernacet further contends that parole violations have a

19   special status that takes them outside the ambit of Moore.

20   We disagree.

21       First, even New York courts do not interpret Bratton as

22   speaking to the constitutional validity of a warrantless

23   arrest of a parole violator.   For example, custody that is

24   illegal solely because it is premised on an improper

                                    20
 1   warrantless arrest does not necessarily provide grounds for

 2   habeas relief: that custody may violate state law, but it is

 3   not unconstitutional.   People ex rel. Rouse v. N.Y. State

 4   Div. of Parole, 864 N.Y.S.2d 230, 235-36 (Sup. Ct. Bronx

 5   Cnty. July 25, 2008).   Furthermore, before Bratton, the New

 6   York Appellate Division “focus[ed] . . . on the narrow

 7   question of whether a violation of the statute requiring the

 8   issuance of a parole violation warrant . . . require[d]

 9   suppression . . . [and] conclude[d] that it does not.”7

10   People v. Dyla, 142 A.D.2d 423, 439 (2d Dep’t 1988).

11   “[N]either the Federal nor the State Constitutions,

12   according to their language and history, require the

13   suppression of evidence gathered as a result of a ‘seizure’

14   which is not ‘unreasonable’ and hence not unconstitutional,

15   solely on the grounds that the seizure may be considered

16   violative of some State statute, ordinance or regulation.”8


          7
            Dyla is compatible with and survives Bratton; the
     Appellate Division expressly “d[id] not decide[] whether a
     violation of parole constitutes an ‘offense’ (see[] Penal Law
     § 10.00[1]) so that the warrantless arrest may be validated on
     this basis.” People v. Dyla, 142 A.D.2d 423, 434 n.3 (2d Dep’t
     1988).
          8
           Other state courts have similarly resolved the question at
     issue in Dyla. In People v. Weathers, the Appellate Court of
     Illinois upheld the warrantless arrest of a parolee for a curfew
     violation, finding such arrests lawful in Illinois (and
     presumptively constitutional); the court rejected her claim that

                                    21
 1   Id. at 434 (citations omitted).

 2        Second, New York has previously permitted warrantless

 3   arrests for all parole violations, suggesting that such

 4   arrests pose no inherent constitutional dilemma.       Before

 5   1978, “[i]n any case where a parole officer ha[d] [probable]

 6   cause to believe that [a] parolee ha[d] violated the

 7   conditions of his parole in an important respect, such

 8   parole officer [could] retake such parolee and cause him to

 9   be temporarily detained without a warrant.”      Former N.Y.

10   Correct. L. §§ 216, 829(3) (both repealed 1978).9       Bratton

11   acknowledges that “an exception to the warrant requirement

12   for those violations taking place in a parole officer’s

13   presence [might] make sense,” 8 N.Y.3d at 641, but notes

14   that there was “a considered legislative choice” to forbid

15   this authority.   Id. at 642.   The legislation has changed

16   since 1978, but the constitutional analysis has not.


     the fruits of the search incident to her arrest should be
     excluded. 40 Ill. App. 3d 211, 213-14 (1976). In Medlock v.
     State, the Court of Appeals of Arkansas held that a warrantless
     arrest of a parolee, though illegal, was supported by probable
     cause and denied a motion to suppress. 79 Ark. App. 447, 461-62
     (Div. IV 2002), aff’d by No. CR-03-839, 2004 WL 2191165 (Ark.
     Sept. 30, 2004) (per curiam). Neither court found a Fourth
     Amendment problem with arrests supported by probable cause that a
     parole violation occurred. The constitutionality of warrantless
     arrests for parole violations does not vary by state. Moore, 553
     U.S. at 176.
          9
            A similar rule still exists for probationers.   See CPL
     N.Y. 410.50(4).

                                     22
 1       Third, parole violations are not inherently less

 2   serious than other minor offenses for which the Fourth

 3   Amendment permits warrantless arrests.   The Supreme Court

 4   has held that warrantless arrests are lawful, for example,

 5   in the case of a mother arrested in front of her children

 6   for driving without a seatbelt (among other minor

 7   infractions), Atwater, 532 U.S. at 323-24; for impersonating

 8   a police officer when helping a motorist change a tire,

 9   Devenpeck v. Alford, 543 U.S. 146, 148-49 (2004); for

10   driving with a suspended license, Moore, 553 U.S. at 166;

11   and for speeding, Arkansas v. Sullivan, 532 U.S. 769, 769

12   (2001) (per curiam).

13       While violating a curfew imposed as a condition of

14   parole is not the gravest of offenses, it is no less

15   reasonable a ground for detention.   Indeed, although an

16   offense need not lawfully result in a custodial sentence for

17   it to serve as a basis for a constitutional arrest,

18   Sullivan, 532 U.S. at 771; Atwater, 532 U.S. at 348-50,

19   under New York law, a parole violation is a lawful ground

20   for a parolee’s arrest and incarceration, reflecting the

21   gravity that the State accords the offense.   See N.Y. Exec.

22   L. § 259-i(3).   Without defining the limits of Moore, we


                                   23
 1   conclude that probable cause regarding a violation that, if

 2   proven, could result in the loss of liberty provides

 3   sufficient grounds for a constitutional warrantless arrest.

 4        Bernacet’s arrest was constitutionally permissible; the

 5   fruits of the search incident to his arrest were therefore

 6   properly admitted.   Sullivan, 532 U.S. at 771.10

 7

 8                              Conclusion

 9        Bernacet’s checkpoint stop was legal and the NYPD had

10   probable cause to believe that he was violating his parole.

11   His arrest by the police staffing the checkpoint, while

12   contrary to New York law, was constitutionally reasonable.

13   The search incident to his arrest uncovered a handgun;

14   because the arrest was constitutionally proper, this weapon

15   was properly admitted at Bernacet’s trial.


          10
            We note, of course, that nothing restricts the authority
     of the States to “accord protection against arrest beyond what
     the Fourth Amendment requires.” Virginia v. Moore, 553 U.S. 164,
     180 (2008) (Ginsburg, J., concurring). The Supreme Court has
     expressed a preference for statutory, rather than constitutional,
     limitations on the arrest power. “It is of course easier to
     devise a minor-offense limitation by statute than to derive one
     through the Constitution, simply because the statute can let the
     arrest power turn on any sort of practical consideration without
     having to subsume it under a broader principle.” Atwater v. City
     of Lago Vista, 532 U.S. 318, 352 (2001). States are free to
     develop their own remedies for illegal arrests as well; however,
     suppression under the Fourth Amendment is available only for
     constitutional violations.

                                    24
1       For the foregoing reasons, the opinion and order of the

2   district court is AFFIRMED.




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