Commonwealth v. Parker ( 2016 )

J-A22033-16
2016 PA Super 280COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DAYQUAN E. PARKER
Appellee No. 340 MDA 2016
Appeal from the Order Entered February 5, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0001552-2015
BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.
OPINION BY GANTMAN, P.J.: FILED DECEMBER 12, 2016
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Lancaster County Court of Common Pleas, which granted in
part the pretrial suppression motion of Appellee, Dayquan E. Parker. We
affirm the trial court’s denial of suppression of some of the evidence, reverse
the trial court’s suppression of other evidence, and remand for further
proceedings.
The relevant facts and procedural history of this case are as follows.
On April 23, 2014, Appellee entered a negotiated guilty plea at docket
number CP-36-CR-0005580-2013, to charges of fleeing or attempting to
elude a police officer, reckless driving, driving without a license, and other
motor vehicle violations. The court sentenced Appellee that day to two
years’ probation for the fleeing or attempting to elude a police officer
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conviction and imposed no further penalty for the remaining offenses.
Appellee reviewed and signed Probation and Parole Regulations
(“Regulations”), which detailed the terms and conditions of his probation.
The Regulations provided, in relevant part, as follows:
Probation and Parole Regulations
* * *
2. I will live in a residence approved by my probation
officer. I will not change my residence without the
approval of my probation officer. My probation officer
may visit my home at any time in order to effectively
confirm compliance with the conditions of my
supervision, and I will cooperate with the efforts of my
probation officer when he/she does so.
* * *
6. I will not possess, have control of, or have in my place
of residence or vehicle, any contraband such as stolen
property, non-prescribed controlled substances, drug
paraphernalia, firearms (hand guns, rifles, shotguns) or
other deadly weapons, including, but not limited to, bow
and arrow, prohibited offensive weapons, or any
instruments of crime. I will submit my person,
property, place of residence, vehicle and personal
effects to search at any time by my probation officer
based upon reasonable suspicion that I am in
possession of contraband.
* * *
8. I will abstain from the unlawful possession, use or
delivery of any non-prescribed controlled substances,
including marijuana. I will submit to urinalysis and/or
breathalyzer testing as required by my probation officer.
Any refusal to submit to testing will be considered a
violation of my supervision. I will reimburse the court for
the cost of laboratory fees sustained upon positive
confirmation of drug use.
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* * *
(Regulations, dated April 23, 2014, at 1 ¶¶ 2, 6, 8) (emphasis added). Adult
Probation and Parole Services (“APPS”) staff member Madeline Olivera
reviewed the Regulations with Appellee. Appellee signed the last page of the
Regulations below the “Acknowledgment” stating: “I hereby acknowledge
that I have read, or have had read to me the foregoing rules, regulations
and special conditions of my probation/parole. I fully understand and agree
to follow the rules and I understand the penalties should I be found in
violation.” (Id. at 3).
On February 12, 2015, at approximately 12:00 p.m., several probation
officers from APPS’ Special Intervention Unit (“SIU”) went to Appellee’s
residence to verify Appellee’s compliance with the terms and conditions of
his probation. The SIU officers wore official attire and displayed their
badges. The probation officers encountered Appellee at the rear of the
residence; Appellee was holding his daughter in his arms and restraining his
dog. After explaining the purpose of their visit, the probation officers asked
Appellee to control his dog, and Appellee complied. The probation officers
stepped inside the doorway to Appellee’s kitchen and immediately observed,
in plain view, clear, empty, corner-cut baggies; cigar packages, which were
opened and discarded on the floor; and small rubber bands. From the
probation officers’ training and experience, they recognized these items as
drug paraphernalia. The probation officers also saw a shotgun in an open
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closet in the kitchen. The probation officers then asked Appellee to have
someone watch his daughter. Appellee handed his daughter to a woman
present in the residence.
Appellee accompanied the probation officers to the third floor of the
residence and Appellee’s bedroom. Appellee sat down on a box
spring/mattress that was on the floor. The probation officers noticed a box
of nine-millimeter rounds on the floor next to the box spring/mattress. In a
half-open dresser drawer, the officers also saw clear, empty baggies, U.S.
currency, and a digital scale. Additionally, the probation officers observed
some type of attachment to a device used to smoke marijuana, which had
liquid dripping from it. The probation officers also observed several
prohibited knives. At this point, the probation officers placed Appellee in
handcuffs.
Agent Joseph Schauren, the team leader for the SIU, called his deputy
director, Mike Hansberry, who gave the probation officers permission to
search the residence based on what the probation officers had observed in
plain view. Agent Schauren next called Detective John Burkhart of the
Lancaster County Drug Task Force (“DTF”), who agreed to send DTF agents
to Appellee’s residence. Three DTF agents arrived at the residence
approximately fifteen minutes later. The probation officers asked the DTF
agents if they were interested in pursuing charges based on what the
probation officers had seen in plain view. After some discussion, the DTF
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agents decided not to pursue a search warrant or criminal charges against
Appellee. Before leaving the residence, the DTF agents contacted the
Lancaster City Code of Compliance Authority (“CCA”) to report the
deplorable living conditions in Appellee’s residence. The DTF agents then
left the premises. Agents of CCA arrived shortly thereafter, photographed
the residence, and stated their intent to condemn the home. After the CCA
agents left, some of the probation officers took Appellee to a holding cell at
the APPS’ office.
With prior approval from their deputy director, the remaining probation
officers performed the authorized search of Appellee’s residence. The
probation officers opened a refrigerator in Appellee’s bedroom located
directly next to the box spring/mattress, discovered suspected cocaine,
removed the substance, and conducted a field test in the kitchen; it tested
positive for cocaine.1 At that point, Agent Schauren placed a second call to
Detective Burkhart, who sent two drug task force agents back to Appellee’s
residence. When the DTF agents arrived, they observed the cocaine and
filed a criminal complaint against Appellee for possession of a controlled
substance with the intent to deliver (“PWID”) and possession of drug
paraphernalia.2
____________________________________________
1
The cocaine weighed approximately 7.4 grams.
2
35 P.S. §§ 780-113(a)(30), (32), respectively.
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On October 7, 2015, Appellee filed a motion to suppress. Appellee
argued the probation officers’ entry into Appellee’s residence constituted a
search lacking reasonable suspicion.3 Appellee further claimed the probation
officers’ search of the refrigerator was unlawful where the DTF agents had
declined to pursue a search warrant or criminal charges. Appellee
maintained the probation officers acted as “stalking horses” for the DTF
agents and exceeded the scope of their authority by searching for evidence
of new crimes after they had already discovered the evidence of probation
violations. Appellee sought suppression of all items the probation officers
observed in plain view as well as the cocaine recovered from the
refrigerator.
The court held a suppression hearing on January 15, 2016. The
Commonwealth introduced testimony/evidence from Agent Schauren and
Detective Ryan Kelly of the DTF. Agent Schauren testified, inter alia, that
his deputy director asked him to conduct an unannounced “home visit” at
Appellee’s residence on February 12, 2015. Agent Schauren explained a
home visit occurs when probation officers visit a probationer’s residence to
confirm he is complying with the terms of his probation. Agent Schauren
highlighted that the Regulations expressly permitted a probation officer to
____________________________________________
3
Appellee insisted the probation officers’ visit was based on two
uncorroborated, anonymous tips that Appellee was selling drugs. Nothing in
the record supports this contention. Appellee abandoned his claim at the
suppression hearing and on appeal. Thus, we give it no further attention.
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visit Appellee’s home at any time to confirm Appellee’s compliance with the
Regulations. Agent Schauren described a typical home visit, during which
the probation officers would make contact with the probationer, explain their
presence, and conduct a “tour” of the residence. During a home visit, the
probation officers first make only a visual inspection of the probationer’s
residence. If the officers do not see evidence of a probation violation, they
will conclude the home visit and leave. If, however, the probation officers
observe items in plain view, which are considered probation violations, then
the probation officers can search the premises, once they obtain permission
from their supervisor, based on reasonable suspicion that the probationer is
in possession of contraband.
During the course of the probation officers’ home visit at Appellee’s
residence, Agent Schauren said he observed, in plain view, clear, empty,
corner-cut baggies; cigar packages, which had been opened and discarded;
small rubber bands; a digital scale; and an attachment to a smoking device,
with liquid dripping from it. Agent Schauren immediately recognized these
items as drug paraphernalia, based on his training and experience. Agent
Schauren described how the small, clear baggies are often used to package
drugs and the cigars can be hollowed-out to smoke marijuana. Agent
Schauren said he also saw, in plain view, a shotgun, ammunition, and
several prohibited knives. Appellee’s possession of these items constituted
violations of his probation as set forth in the Regulations. Agent Schauren
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placed Appellee in handcuffs due to these violations. Agent Schauren
contacted his deputy director for permission to search the residence; Deputy
Hansberry granted permission to search.
Agent Schauren explained how he initially contacted Detective
Burkhart to ask if the DTF wanted to pursue any charges arising from the
probation violations. Agent Schauren said contacting the local police is
“standard predicate” in these circumstances. Agent Schauren confirmed that
his phone call to Detective Burkhart was the first conversation Agent
Schauren had with the DTF concerning Appellee’s residence. Agent
Schauren made clear there was no prior arrangement with the DTF
regarding Appellee’s residence. Agent Schauren did not ask the DTF agents
to perform a search upon their arrival; he asked only if they were interested
in pursuing charges based on the items the probation officers had seen in
plain view. Agent Schauren stated the DTF agents decided not to pursue a
search warrant or criminal charges. After the DTF agents left, the probation
officers conducted a search of the residence, which led to their discovery of
cocaine in a refrigerator in Appellee’s bedroom. Notwithstanding their prior
discovery of sufficient evidence of probation violations, Agent Schauren
emphasized that performing a search was necessary because the probation
officers believed Appellee might have a firearm or quantities of drugs in the
residence which Appellee should not have access to if he returned home
following his arrest and/or incarceration. (See N.T. Suppression Hearing,
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1/15/16, at 4-51; R.R. at 13a-25a.)
Detective Kelly testified, inter alia, that when he arrived at Appellee’s
residence with two other officers, Agent Schauren showed them what they
had observed in plain view. Detective Kelly decided the evidence might not
be enough for a search warrant. After discussion with his fellow officers,
Detective Kelly declined to contact the District Attorney’s Office to bring
charges. Detective Kelly said he was not familiar with Appellee before he
arrived at Appellee’s residence. Detective Kelly confirmed that none of the
probation officers asked any of the DTF agents to search the residence.
Detective Kelly also made clear he had no interaction with anyone from the
probation office before Detective Burkhart dispatched him to Appellee’s
residence. (See id. at 52-59; R.R. at 25a-27a.) Following Detective Kelly’s
testimony, the Commonwealth rested. The defense presented no
testimony/evidence at the suppression hearing.
The court heard argument from counsel. Appellee’s counsel argued:
(1) the probation officers lacked consent or authority to enter and “tour”
Appellee’s residence; and (2) the probation officers acted as “stalking
horses” for the DTF, exceeding their capacity as probation officers. In
support of his second argument, Appellee claimed probation officers’ duties
are limited to discovering probation violations; once the probation officers
found evidence of Appellee’s probation violations, they lacked authority to
perform any search to look for evidence of new crimes. In response, the
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Commonwealth argued: (1) the probation Regulations expressly permitted
unannounced home visits to ensure compliance with the terms and
conditions of Appellee’s probation; (2) the probation officers observed
contraband in plain view, which violated the terms of Appellee’s probation
and gave the officers reasonable suspicion to perform an authorized search;
(3) the probation officers were obligated to search Appellee’s residence to
ensure Appellee would return to a contraband-free home; and (4) no
evidence indicated the probation officers acted as “stalking horses” for the
DTF.
The court rejected outright Appellee’s lack of consent argument. The
court also stated it was inclined to deny the suppression motion with respect
to the items the probation officers had observed in plain view. Nevertheless,
the court expressed reservations about the probation officers’ subsequent
search of the residence. The court directed the parties to submit post-
hearing memoranda regarding applicability of the “stalking horse” doctrine
and whether the probation officers exceeded the scope of their duties by
performing a search after the DTF agents declined to pursue charges. The
Commonwealth and Appellee filed post-hearing memoranda on January 26,
2016.
On February 5, 2016, the court denied Appellee’s suppression motion
with respect to the items the probation officers had observed in plain view;
the court granted Appellee’s motion to suppress the cocaine found in the
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refrigerator in his bedroom. The Commonwealth timely filed a notice of
appeal on February 22, 2016, pursuant to Pa.R.A.P. 311(d) (allowing
Commonwealth to appeal as of right in criminal case from pretrial order,
where Commonwealth certifies in notice of appeal that order will terminate
or substantially handicap prosecution). On February 24, 2016, the court
ordered the Commonwealth to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b), which the Commonwealth timely
filed on March 4, 2016.
The Commonwealth raises one issue for our review:
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY
GRANTING [APPELLEE’S] MOTION TO SUPPRESS WHERE
THE PROBATION OFFICE[RS] HAD REASONABLE
SUSPICION TO SEARCH [APPELLEE’S] RESIDENCE.
(Commonwealth’s Brief at 4).
When the Commonwealth appeals from a suppression order, the
relevant scope and standard of review are:
We consider only the evidence from the defendant’s
witnesses together with the evidence of the prosecution
that, when read in the context of the entire record,
remains uncontradicted. As long as there is some
evidence to support them, we are bound by the
suppression court’s findings of fact. Most importantly, we
are not at liberty to reject a finding of fact which is based
on credibility.
Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011),
appeal denied, 616 Pa. 651, 49 A.3d 442 (2012) (internal citation omitted).
“The suppression court’s conclusions of law, however, are not binding on an
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appellate court, whose duty is to determine if the suppression court properly
applied the law to the facts.” Id. (internal citation omitted).
The Commonwealth argues the probation officers discovered, in plain
view, drug paraphernalia, a shotgun, ammunition, and prohibited knives,
during their authorized home visit. The Commonwealth asserts Appellee’s
possession of these items constituted violations of his probation and gave
the probation officers reasonable suspicion to search the residence for other
contraband that might be present. The Commonwealth maintains that,
given reasonable suspicion, the probation officers had only to obtain
permission from a supervisor to perform a search. The Commonwealth
emphasizes the probation officers obtained the necessary permission from
their supervisor to search Appellee’s residence. The Commonwealth submits
the search was reasonably related to the probation officers’ duties to confirm
compliance with the terms of Appellee’s probation, as detailed in the
Regulations, and to protect the public from illegal activity. As well, the
Commonwealth contends the search was necessary to ensure the residence
would be contraband-free when Appellee returned. The Commonwealth
concludes the trial court’s suppression of evidence was improper, and this
Court must reverse and remand for further proceedings.
In response, Appellee concedes probation officers can search a
probationer’s residence on the basis of reasonable suspicion, but he argues
the search must be limited in scope to whether the probationer committed
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any probation violations. Appellee asserts the probation officers’ search in
this case was unlawful because they searched for evidence of new crimes,
after they had discovered multiple probation violations. Appellee claims the
probation officers’ duties ceased once they discovered evidence of Appellee’s
probation violations, placed him in custody, and removed him from the
home, so the search of the refrigerator exceeded the scope of their duties.
Appellee maintains the sole motivation for the probation officers to call the
DTF was to look for evidence of new crimes. Appellee insists that after the
DTF agents declined to pursue a search warrant or charges and left the
residence, the probation officers had no authority to look for evidence of new
crimes. Appellee contends the probation officers effectively “switched hats”
to act as “stalking horses” for the police, after the DTF agents had gone, and
search for evidence of new crimes. Appellee suggests the probation officers’
duty to ensure Appellee returned to a contraband-free home was mere
pretext, because Appellee was physically unable to return home until his
release from prison for the probation violations and the CCA had condemned
his residence. Appellee concludes the court properly suppressed the
cocaine, and this Court should affirm that decision.4 For the following
reasons, we agree with the Commonwealth’s position.
The aim of probation and parole is to rehabilitate and reintegrate a
____________________________________________
4
Appellee does not challenge the trial court’s denial of his motion to
suppress the items discovered in plain view.
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lawbreaker into society as a law-abiding citizen. Commonwealth v.
Chambers, 55 A.3d 1208, 1212 (Pa.Super. 2012). The institution of
probation and parole assumes a probationer or parolee is more likely than
the ordinary citizen to violate the law. Commonwealth v. Moore, 805
A.2d 616, 619 (Pa.Super. 2002). Consequently, probationers and parolees
have limited Fourth Amendment rights because of a diminished expectation
of privacy. Id. See also Chambers, supra (stating probationers’ and
parolees’ Fourth Amendment constitutional rights are virtually
indistinguishable). This Court explained that probation officers, like parole
officers:
[A]re in a supervisory relationship with their offenders.
The purpose of this supervision is to assist the offenders in
their rehabilitation and reassimilation into the community
and to protect the public. Supervision practices shall
reflect the balance of enforcement of the conditions of
parole and case management techniques to maximize
successful parole completion through effective reentry to
society. As such, probationers and parolees are subject to
general and individual rules of conduct and supervision
described at sentencing and/or in the parole agreement.
Commonwealth v. Smith, 85 A.3d 530, 536 (Pa.Super. 2014) (internal
citations and quotation marks omitted).
The statute governing the supervisory relationship between probation
officers and probationers and the concomitant rights of the probationers, in
effect at the time of the search in this case, provided in relevant part:
§ 9912. Supervisory relationship to offenders
(a) General rule.−Officers are in a supervisory
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relationship with their offenders. The purpose of this
supervision is to assist the offenders in their rehabilitation
and reassimilation into the community and to protect the
public.
(b) Searches and seizures authorized.−
(1) Officers and, where they are responsible for the
supervision of county offenders, State parole agents
may search the person and property of offenders in
accordance with the provisions of this section.
* * *
(c) Effect of violation.−No violation of this section
shall constitute an independent ground for suppression of
evidence in any probation and parole or criminal
proceeding.
(d) Grounds for personal search.−
(1) A personal search of an offender may be
conducted by an officer:
(i) if there is a reasonable suspicion to believe that
the offender possesses contraband or other evidence
of violations of the conditions of supervision;
(ii) when an offender is transported or taken into
custody; or
(iii) upon an offender entering or leaving the securing
enclosure of a correctional institution, jail or
detention facility.
(2) A property search may be conducted by an
officer if there is reasonable suspicion to believe
that the real or other property in the possession
of or under the control of the offender contains
contraband or other evidence of violations of the
conditions of supervision.
(3) Prior approval of a supervisor shall be
obtained for a property search absent exigent
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circumstances. No prior approval shall be required for
a personal search.
(4) A written report of every property search
conducted without prior approval shall be prepared by
the officer who conducted the search and filed in the
offender’s case record. The exigent circumstances shall
be stated in the report.
(5) The offender may be detained if he is present
during a property search. If the offender is not present
during a property search, the officer in charge of the
search shall make a reasonable effort to provide the
offender with notice of the search, including a list of the
items seized, after the search is completed.
(6) The existence of reasonable suspicion to
search shall be determined in accordance with
constitutional search and seizure provisions as
applied by judicial decision. In accordance with
such case law, the following factors, where
applicable, may be taken into account:
(i) The observations of officers.
(ii) Information provided by others.
(iii) The activities of the offender.
(iv) Information provided by the offender.
(v) The experience of the officers with the
offender.
(vi) The experience of officers in similar
circumstances.
(vii) The prior criminal and supervisory history of
the offender.
(viii) The need to verify compliance with the
conditions of supervision.
* * *
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42 Pa.C.S.A. § 9912(a), (b)(1), (c), (d) (effective October 13, 2009 to
September 18, 2016) (emphasis added).5 See also 42 Pa.C.S.A. § 9913
(explaining probation officer is declared to be peace officer and shall have
police powers and authority to arrest, with or without warrant, writ, rule or
process, any person on probation under supervision of court for failing to
report as required by terms of that person’s probation, or for any other
violation of that person’s probation).
“The policy behind [Section 9912] is to assist the offenders in their
rehabilitation and reassimilation into the community and to protect the
public.” Moore, supra at 620 (emphasis in original). “Essentially, Section
9912 authorizes county probation officers to search a probationer’s person
or property, if there is reasonable suspicion to believe the probationer
possesses contraband or other evidence of violations of the conditions of
supervision.” Chambers, supra at 1214 (citing 42 Pa.C.S.A. §
9912(d)(1)(i), (d)(2)). “Reasonable suspicion to search must be determined
consistent with constitutional search and seizure provisions as applied by
judicial decisions; and in accordance with such case law, enumerated
factors, where applicable, may be taken into account.” Chambers, supra____________________________________________
5
The legislature amended this statute on July 20, 2016, effective in 60 days.
The current version of the statute contains substantially similar language.
See 42 Pa.C.S.A. § 9912 (amended July 20, 2016; effective September 19,
2016).
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(citing 42 Pa.C.S.A. § 9912(d)(6)).
In establishing reasonable suspicion, the fundamental
inquiry is an objective one, namely, whether the facts
available to the officer at the moment of the intrusion
warrant a [person] of reasonable caution in the belief that
the action taken was appropriate. This assessment, like
that applicable to the determination of probable cause,
requires an evaluation of the totality of the circumstances,
with a lesser showing needed to demonstrate reasonable
suspicion in terms of both quantity or content and
reliability.
Moore, supra at 619-20 (internal citations and quotation marks omitted).
“[T]he threshold question in cases such as this is whether the
probation officer had a reasonable suspicion of criminal activity or a violation
of probation prior to the…search.” In re J.E., 907 A.2d 1114, 1119
(Pa.Super. 2006), aff’d, 594 Pa. 528, 937 A.2d 421 (2007) (emphasis
omitted). Accordingly, the fact that a probationer signs a consent form
permitting warrantless searches as a term of his probation is insufficient to
permit a search absent reasonable suspicion of wrongdoing. Id. at 1120.
Rather, the probationer’s signature acts as acknowledgment that the
probation officer “has a right to conduct reasonable searches of [the
probationer’s] residence listed on the [probation] agreement without a
warrant.” Commonwealth v. E. Williams, 547 Pa. 577, 588, 692 A.2d
1031, 1036 (1997).
In Smith, supra, the appellant/parolee signed a form after his release
from prison entitled “Conditions Governing Parole/Reparole,” which expressly
permitted agents of the Pennsylvania Board of Probation and Parole to
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search the appellant’s person, property, and residence without a warrant.
The appellant resided with his girlfriend, who also consented to unannounced
home visits by parole agents and warrantless searches based on reasonable
suspicion that the appellant has violated the conditions of his parole. Parole
agents visited the appellant’s residence for a routine “house check,” and
during a “walk through” of the residence, one agent detected a strong odor
of marijuana emanating from the basement. The agent descended the
basement stairs and located in a shopping bag under the stairs a large
quantity of marijuana, cash, a scale, unused baggies, and a picture of the
appellant. A subsequent police search of the residence revealed one and
three-quarter pounds of suspected marijuana, two boxes of live ammunition,
a digital scale, a picture of the appellant, and cash. The Commonwealth
charged the appellant with PWID, after which he sought to suppress the
evidence, claiming the parole officers’ visit to his residence constituted a
search without reasonable suspicion. The trial court denied the motion.
Following a jury trial conviction for PWID, the appellant challenged the trial
court’s suppression ruling on appeal.
This Court affirmed the suppression court’s decision, reasoning:
We conclude that the state parole agent’s actions in
walking through [the a]ppellant’s residence did not
constitute a search. Rather, the parole agents were
performing their supervisory duties by visiting [the
a]ppellant at his home to ensure his compliance with the
conditions of his probation. The visit, which did not
progress beyond a visual inspection, was limited in its
scope and intrusiveness. The record indicates that the
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walk-through was of short duration, occurring between
10:10 p.m. and 10:25 p.m. Additionally, the record does
not indicate that the parole agents did anything more than
walk through the various rooms checking for anything in
plain sight.
During this lawful visit, Agent Peterson smelled marijuana
emanating from [the a]ppellant’s basement, and at that
juncture, he developed the requisite reasonable suspicion
to conduct a search for the marijuana. Notably, the “plain
view” doctrine renders a search and seizure permissible
where: (1) the government officials have not violated the
Fourth Amendment in arriving at the location from which
the item could be viewed; (2) the item is in plain view; (3)
the incriminating character of the item is immediately
apparent; and (4) the government officials have a lawful
right of access to the item itself. Given that the parole
agents were visiting [the a]ppellant at his residence in
accordance with their supervisory duties, the smell of
marijuana gave rise to reasonable suspicion for the agents
to conduct a search for the contraband that was ultimately
located in the basement. Accordingly, we find no error in
the trial court’s denial of [the a]ppellant’s motion to
suppress the evidence obtained from [the a]ppellant’s
residence.
Smith, supra at 537 (internal citations, quotation marks, and footnote
omitted). See also Commonwealth v. Curry, 900 A.2d 390, 395
(Pa.Super. 2006) (reversing trial court’s grant of defendant/parolee’s motion
to suppress and remanding for further proceedings; parole agents had
warrant for parolee’s arrest for failure to report for supervision, visited
apartment where agents believed parolee was hiding, discovered parolee
hiding in bathroom, and observed drug paraphernalia in plain view; “[t]his
observation clearly gave [the parole supervisor] reasonable suspicion to
believe that the property in the possession of or under the control of [the
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parolee] contained contraband or other evidence of violations of the
conditions of supervision”; based on that reasonable suspicion, parole
supervisor searched bureau that stood near contraband and immediately
discovered ammunition and firearm; in sum, parole supervisor possessed
reasonable suspicion to conduct search of residence in which parolee was
staying because supervisor observed, in plain view, evidence that parolee
was engaged in criminal activity inside apartment; suppression of evidence
was improper) (internal citation and quotation marks omitted).
Under the “stalking horse” doctrine, Pennsylvania courts historically
invalidated probation officers’ searches and subsequent seizures of evidence
where the probation officers essentially “switched hats,” and, in all relevant
respects, became police officers. Commonwealth v. Altadonna, 817 A.2d
1145 (Pa.Super. 2003). Although most cases in our jurisdiction analyzing
the “stalking horse” doctrine predated Section 9912 and its predecessor
statute, the doctrine is still “pertinent” to the extent a probation officer aids
the police by statutorily circumventing the warrant requirement, based on
reasonable suspicion, instead of the heightened standard of probable cause.6
____________________________________________
6
Our federal courts have described the “stalking horse” doctrine as follows:
A probation officer acts as a stalking horse if he conducts a
probation search on prior request of and in concert with
law enforcement officers. However, collaboration between
a probation officer and police does not in itself render a
probation search unlawful. The appropriate inquiry is
(Footnote Continued Next Page)
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See Altadonna, supra at 1152-53. See also Commonwealth v. Brown,
361 A.2d 846, 850 (Pa.Super. 1976) (holding parole officer was acting as
stalking horse for police where appellant’s parole officer arrived at
appellant’s home along with two police officers and appellant’s employer,
without arrest or search warrant, based on suspicion that appellant had
stolen electronic goods from his employer; parole officer had asked police to
assist him in arresting appellant; upon entrance into appellant’s residence,
appellant’s employer immediately recognized stolen goods; parole officer
then arrested appellant; in this scenario, parole officer ceased acting as
administrator of parole system and “switched hats” to become police officer,
involving appellant’s employer who wanted to press criminal charges and
requesting assistance of other police officers; once parole officer “switched
hats” and, in all relevant respects, became police officer, administrative
justification that generally permitted parole officer to avoid acquisition of
_______________________
(Footnote Continued)
whether the probation officer used the probation search to
help police evade the Fourth Amendment’s usual warrant
and probable cause requirements or whether the probation
officer enlisted the police to assist his own legitimate
objectives. A probation officer does not act as a
stalking horse if he initiates the search in the
performance of his duties as a probation officer.
In a more succinct articulation of the same view, … a
[probation] search may be invalidated when it is nothing
more than a ruse for a police investigation.
United States v. S. Williams, 417 F.3d 373, 377 (3d Cir. 2005) (internal
citations and quotation marks omitted) (emphasis added).
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warrant was no longer applicable). Compare Altadonna, supra (holding
parole officers were not acting as stalking horses for Bureau of Narcotics
Investigation (“BNI”), where parole officers had received information that
appellant was dealing drugs and directed another parolee to arrange
meeting with appellant; when appellant arrived at agreed-upon time and
place of meeting, parole officers seized appellant and searched van in which
he was sitting; although BNI agents assisted parole officers in seizure of
appellant and search of van, witnesses testified consistently at suppression
hearing that stop and search of appellant took place to determine whether
appellant had violated his parole, and parole officers requested assistance
from BNI solely due to possible jurisdictional uncertainty that might occur
during investigation).
Instantly, Appellee was serving a two-year probationary sentence for
fleeing or attempting to elude a police officer. Appellee reviewed and signed
probation Regulations, which allowed probation officers to visit Appellee’s
residence at any time to confirm compliance with the terms and conditions
of his probation. The Regulations expressly prohibited Appellee from
possessing contraband, such as drug paraphernalia, firearms, or any non-
prescribed controlled substances. By signing the Regulations, Appellee also
acknowledged that the probation officers could search his property at any
time, based upon reasonable suspicion that Appellee was in possession of
contraband. (See Regulations at 1 ¶¶ 2, 6.)
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On February 12, 2015, several probation officers from the SIU visited
Appellee’s residence to verify his compliance with the terms and conditions
of his probation. Upon entering the residence, the probation officers
immediately observed, in plain view, clear, empty, corner-cut baggies, cigar
packages, and small rubber bands. They also saw, in plain view, a shotgun
in an open closet in the kitchen. When the probation officers walked through
the residence and entered Appellee’s bedroom, they noticed, in plain view, a
box of nine-millimeter rounds on the floor and clear, empty baggies, cash,
and a digital scale in a half-open dresser drawer. Additionally, the probation
officers observed some type of attachment to a device used to smoke
marijuana, which had liquid dripping from it. The probation officers also
observed several prohibited knives. Appellee’s possession of each of these
items constituted a violation of his probation, so the probation officers
placed Appellee in handcuffs. (See id.)
Agent Schauren called his deputy director, who gave the probation
officers permission to search the residence because the items they had
observed in plain view gave rise to reasonable suspicion to support the
search. Agent Schauren then called Detective Burkhart of the DTF, who
agreed to send DTF agents to Appellee’s residence. Upon their arrival, the
probation officers asked the DTF agents if they were interested in pursuing
charges. After some discussion, the DTF agents decided not to pursue a
search warrant or criminal charges against Appellee. When Appellee was
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removed from the residence, the remaining probation officers executed the
approved search of Appellee’s residence. The probation officers opened a
refrigerator in Appellee’s bedroom and discovered a controlled substance
which tested positive for cocaine. At that point, Agent Schauren placed a
second call to Detective Burkhart, who sent two DTF agents back to
Appellee’s residence. When the DTF agents arrived, they observed the
cocaine and filed a criminal complaint against Appellee for PWID and
possession of drug paraphernalia.
In granting Appellee’s motion to suppress the cocaine, the trial court
summarized its reasoning as follows:
[T]he [c]ourt found that the [p]robation [o]fficers’
searching of the refrigerator in [Appellee’s] bedroom was
improper. This is because the refrigerator was searched
after the probation officers had already: (1) Searched the
residence and found evidence of probation violations; (2)
Arrested and removed [Appellee] from the residence based
on those violations; (3) Called the [DTF] to the residence;
and (4) Were told by the [DTF] that there was insufficient
evidence to support new criminal charges. The [c]ourt
posits that continuing to search the residence after these
events had occurred was excessive.
(Trial Court Opinion, filed March 29, 2016, at 1; R.R. at 32a). We
respectfully disagree with the trial court’s analysis under the facts of this
case.
Initially, the trial court erred when it said the probation officers’ first
walk-through of Appellee’s residence constituted a “search.” Here, Appellee
signed Regulations allowing for unannounced home visits to verify his
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compliance with the terms and conditions of his probation. When the
probation officers entered Appellee’s residence, the purpose of their
presence was to verify his compliance with the Regulations. The probation
officers then took a “tour” of the home, making only a visual inspection of
Appellee’s residence. Nothing in the record supports Appellee’s statements
that the probation officers “forced” or “pushed their way inside [Appellee’s]
residence without invitation” or that the probation officers’ entry was akin to
a “raid.” (See Appellee’s Brief at 3, 14, 15.) Rather, the record confirms
the probation officers performed an unannounced home visit as set forth in
the Regulations. (See Regulations at 1 ¶ 2.) See also Smith, supra.During the course of the home visit, the probation officers saw, in plain
view, various items which the officers immediately recognized as drug
paraphernalia as well as a shotgun in the open kitchen closet. The probation
officers saw other evidence of drug paraphernalia in Appellee’s bedroom,
ammunition and several prohibited knives. These observations gave the
probation officers reasonable suspicion to believe Appellee had other
contraband in the residence. The officers’ search (conducted with proper
prior approval) was consistent with and reasonably related to their
supervisory duties to confirm whether Appellee possessed drugs or weapons
in violation of the Regulations. See 42 Pa.C.S.A. § 9912; Smith, supra;Curry, supra. The probation officers’ search was not illegal simply because
the drug paraphernalia and other items situated in plain view constituted
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separate probation violations or because the search occurred after the DTF
agents left the premises. Contrary to Appellee’s arguments, many types of
physical evidence seen during a home visit would constitute probation
violations on their own as well as give rise to reasonable suspicion to
perform a further search. Likewise, the search was not unlawful merely
because it revealed incriminating evidence for use in a criminal prosecution.
See E. Williams, supra at 590 n.11, 692 A.2d at 1037 n.11 (explaining
search is not unlawful simply because it also benefits police or that
incriminating evidence found is turned over to police for use in criminal
prosecution).
Additionally, the fact that DTF agents originally decided to pass on
pursuing a search warrant or criminal charges, based on the evidence found
in plain view, does not nullify the probation officers’ reasonable suspicion to
conduct a thorough search.7 Significantly, Agent Schauren testified that
contacting the local police is “standard predicate” in these circumstances;
and there was no prior arrangement with the DTF regarding Appellee’s
residence. Detective Kelly confirmed he had no interaction with anyone
____________________________________________
7
Similarly, Appellee’s transport to the APPS’ office prior to the search and
the CCA’s stated intent to condemn Appellee’s residence does not nullify the
probation officers’ reasonable suspicion to search. Even if Appellee were
physically unable to return to his residence (which we cannot say with
certainty on this record), the probation officers still had reasonable suspicion
to believe Appellee had contraband in the residence. See 42 Pa.C.S.A. §
9912; Smith, supra; Curry, supra.- 27 -
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from the probation office before Detective Burkhart dispatched him to
Appellee’s residence. Thus, the record lacks any evidence of an express or
tacit agreement between the probation officers and the DTF in this case to
support Appellee’s “stalking horse” claims.8 See Altadonna, supra; S.
Williams, supra. Compare Brown, supra.
Based upon the foregoing, we conclude the probation officers in this
case first conducted an unannounced “home visit” of Appellee’s residence, in
accordance with Appellee’s probation Regulations. Their observations of
contraband in plain view gave them reasonable suspicion that Appellee had
additional contraband in the residence. The probation officers’ search, which
was conducted with prior approval, was consistent with and reasonably
related to Appellee’s probation Regulations. Therefore, the probation
officers’ search of Appellee’s residence was proper under the facts of this
____________________________________________
8
Federal jurisprudence has called into question the continued vitality of the
“stalking horse” doctrine. See United States v. Knights, 534 U.S. 112,
122, 122 S.Ct. 587, 593, 151 L.Ed.2d 497, ___ (2001) (holding search of
probationer’s home is constitutional so long as probation officer has
reasonable suspicion that probationer who is subject to search condition in
probation agreement is engaged in criminal activity; “Because our holding
rests on ordinary Fourth Amendment analysis that considers all the
circumstances of a search, there is no basis for examining official purpose”);
S. Williams, supra (explaining “stalking horse” claims are necessarily
premised on some notion of impermissible purpose, but Knights decided
that inquiries into purpose underlying probationary searches are
impermissible). See also Commonwealth v. Hughes, 575 Pa. 447, 836
A.2d 893 (2003) (reaffirming that Pennsylvania Constitution provides
parolee with no greater protection than United States Constitution in area of
warrantless searches of parolee’s residence, where parolee has signed
agreement to allow search of his premises as condition of parole).
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case, and the trial court erred when it suppressed the cocaine uncovered
during the valid search. See Goldsborough, supra. Accordingly, we affirm
the trial court’s denial of suppression of the evidence observed in plain view,
reverse the trial court’s suppression of the cocaine, and remand for further
proceedings.
Order affirmed in part and reversed in part; case remanded for further
proceedings. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2016
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