Commonwealth v. Mathis, D., Aplt.

[J-107-2016]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
COMMONWEALTH OF PENNSYLVANIA, : No. 35 MAP 2016
:
Appellee : Appeal from the Order of the Superior
: Court at No. 2099 MDA 2014 dated
: 9/22/15, reconsideration denied
v. : 11/23/15, affirming the judgment of
: sentence of Dauphin County Court of
: Common Pleas, Criminal Division, at
: No. CP-22-CR-0000174-2014 dated
DARRIN ORLANDO MATHIS, : 11/25/14
:
Appellant : ARGUED: November 2, 2016
OPINION
CHIEF JUSTICE SAYLOR DECIDED: November 22, 2017
This discretionary appeal pertains to the authority of parole agents to detain and
frisk a non-parolee visitor while performing a routine check at a parolee’s home. We
also granted review to address whether reasonable suspicion existed to justify the
seizure and frisk in this instance.
By way of background, state parole agents’ authority and duties with respect to
parolees are prescribed by two sections of the Prisons and Parole Code.1 Section 6152
declares agents to be peace officers and provides them with police power to arrest
1
Act of Aug. 11, 2009, P.L. 147, No. 33, §7 (as amended 61 Pa.C.S. §§6151-53) (the
“Parole Code”). As used in the statute, “offender” denotes “[a]ny person subject to the
parole or probationary supervision of the board.” 61 Pa.C.S. §6151.
without warrant any parolee under supervision for violating parole conditions. See 61
Pa.C.S. §6152. Section 6153 deems parole agents to be in a “supervisory relationship
with their offenders,” aimed at assisting parolees in rehabilitation and reassimilation and
protecting the public. Id. §6153(a). This section further outlines the procedures and
requirements for agents to search the person and property of offenders, see id.
§6153(b)(1), (d), and provides that such searches must comport with the protections of
the United States and Pennsylvania Constitutions, see id. §6153(b)(2). Another
provision prevents the exclusion of evidence from parole or criminal proceedings based
solely on a violation of the statute. See id. §6153(c).
Turning to the facts, on December 2, 2013, Pennsylvania Parole Agents Michael
Welsh and Gregory Bruner conducted a routine home visit to the residence of parolee
Gary Waters.2 Agent Welsh characterized the neighborhood as a “high crime” area.
N.T., July 28, 2015, at 4. Waters invited the agents into the home, where they
immediately recognized the strong odor of marijuana, which increased as they
continued through the home. The agents and Waters proceeded through the front room
and dining room to the kitchen, where Appellant Darrin Orlando Mathis was seated in a
2
These facts derive from Appellant’s and Agent Welsh’s testimony at a hearing on
Appellant’s motion to suppress evidence. Ordinarily, when a defendant challenges an
adverse ruling of a suppression court, as is the case here, a reviewing court is bound by
the suppression court’s factual findings that are supported by the record, considering
only the evidence of the prosecution and so much of the defense’s evidence that
remains uncontradicted. See Commonwealth v. D'Amato, 514 Pa. 471, 482, 526 A.2d
300, 305 (1987) (citation omitted). In this instance, however, the suppression court did
not enter findings of facts, nor did it file a Rule 1925(a) opinion upon appeal to the
Superior Court, due to a health emergency. See Commonwealth v. Mathis, 125 A.3d
780, 783 n.5 (Pa. Super. 2015). Nevertheless, as the Commonwealth was the
prevailing party before the suppression court, we view the evidence in its favor. See
Commonwealth v. Logan, 468 Pa. 424, 429-30, 364 A.2d 266, 269 (1976).
Furthermore, Agent Welsh’s and Appellant’s depictions of the events substantially align,
with only minor discrepancies that will be resolved by reference to the above precepts.
[J-107-2016] - 2
chair, near the rear door of the home, in the midst of receiving a hair cut from Waters.
Waters, who was a barber by trade, identified the parole agents to Appellant. Agent
Welsh then detained Waters in the front room, questioning him regarding the marijuana
odor. Agent Welsh also noticed at this time an ashtray full of marijuana “roaches” sitting
on a table in the front room. N.T., July 28, 2014, at 9. However, neither agent
witnessed anyone actually smoking, nor was there any particular indication that
marijuana had been smoked in the kitchen.
While Agent Welsh dealt with Waters, Agent Bruner maintained visual contact
with Appellant. Appellant repeatedly got up from the chair and walked to the kitchen
counter, apparently checking text messages on his charging cellphone. Agent Bruner
alerted Agent Welsh that Appellant “seemed pretty nervous.” N.T., July 28, 2014, at 9.
Agent Welsh returned to the kitchen briefly, stating to Appellant, “I prefer you not being
on the cell phone for safety reasons. Could you please put that away.” Id. at 10.
Thereafter, according to Appellant, Agent Welsh asked him to leave, explaining
that “[w]e want to finish talking to parolee. You can come back and get your haircut
finished wherever [sic] you want to. . . . I don’t want to put you through [an]
unnecessar[y] search[] and all that.” Id. at 54 (alterations added). Appellant recalled
that “[i]t sounded like [Agent Welsh] wanted me to hurry up and leave,” and that he felt
he was being “hurried along.” Id. at 54-55.
Agent Welsh’s recollection differed minimally, as he recalled stating to Appellant
that “I want to get you out of here as soon as I possibly can. Could you do me a favor,
grab your personal belongings and come to the front room.” Id. at 10. Both Agent
Welsh and Appellant agreed that Appellant was cooperative with all of the agent’s
requests. Further, Agent Welsh testified that the encounter, to that point, remained
relaxed and conversational, but that Appellant “appeared uneasy[, displaying b]roken
[J-107-2016] - 3
eye contact [and] speaking nervously, broken up.” Id. at 28 (alterations added); see
also id. at 26 (characterizing their interactions as “very light . . . [w]e were talking . . .
other than his nervous behavior, . . . he was being cooperative”). The agent explained
that he intended to identify Appellant and whether he had any outstanding warrants, so
as to confirm with whom Waters was associating. See id. at 10, 23.
As Appellant collected his belongings in the kitchen, Agent Welsh noticed that he
picked up his jacket by “real gently plac[ing] a hand underneath the jacket and over top
of the jacket and kind of h[olding] it up to his body like it was a football [or] a baby.” Id.
at 10-11. When Appellant began walking to the other room, he continued to hold the
jacket to his side in a “protecting type of grip” while also turning away from the agent,
which revealed a bulge in the jacket. Id. at 10-11. These observations caused Agent
Welsh to have concerns regarding the agents’ safety. He then asked Appellant if he
could pat him down for safety reasons, because he “intended [Appellant] not to leave
the residence with [a] gun or drugs.” Id. at 31. Appellant refused, at which time Agent
Welsh again noticed the bulge, described as the size of a cigarette pack or wallet, which
further raised Agent Welsh’s suspicions that Appellant may be secreting contraband or
a weapon. Agent Welsh reached out to the bulge and felt what he believed was the
handle of a firearm. He seized the jacket and pulled it forcefully from Appellant,
throwing it to the ground. Appellant was then handcuffed and patted down. Thereafter,
Agent Welsh noticed a bag of marijuana on the floor between Appellant’s feet, while
Agent Bruner recovered a handgun from the jacket.
A local police officer reported to the residence, and Appellant admitted to
ownership of the weapon and drugs. A criminal history check revealed that Appellant
was prohibited from possessing a firearm. The officer arrested Appellant and charged
[J-107-2016] - 4
him with possessory offenses of a prohibited firearm, a small amount of marijuana, and
drug paraphernalia.3
Appellant filed a pretrial motion to suppress the physical evidence and his
statement to police, asserting that parole agents have no statutory authority over non-
offenders and that Agent Welsh did not have reasonable suspicion to detain and frisk
him. At the hearing, Appellant, Agent Welsh, and the arresting officer testified,
developing the above-recited facts. The trial court denied Appellant’s motion to
suppress. See supra note 2. Following a stipulated bench trial, Appellant was
convicted of all charges and sentenced to thirty-two to sixty-four months’ imprisonment.
He appealed to the Superior Court.
In a published opinion, a three-judge panel of the Superior Court rejected
Appellant’s claims that the parole agents lacked authority to perform a protective frisk of
a non-parolee visitor and that the agents lacked reasonable suspicion to believe
Appellant was armed and dangerous. See Commonwealth v. Mathis, 125 A.3d 780,
791-92 (Pa. Super. 2015). Initially, the intermediate court acknowledged that, since
Sections 6152 and 6153 of the Parole Code only address agents’ authority with respect
to offenders, parole agents are generally not empowered to act as police officers
relative to non-offenders. In this respect, the court found pertinent the decision in
Commonwealth v. Scott, 916 A.2d 695 (Pa. Super.), appeal denied, 937 A.2d 445 (Pa.
2007) (table).
In Scott, two probation officers conducted a routine home check of a probationer.
While they were there, the probationer’s nephew attempted to leave with a black bag
that belonged to him. The probation officers ultimately opened the bag without the
nephew’s consent, discovering marijuana and scales.
3
See 18 Pa.C.S. §6105(a)(1); 35 P.S. §§780-113(a)(31), (32).
[J-107-2016] - 5
The Superior Court affirmed the suppression of the evidence, holding that the
probation officers possessed police power and authority only with respect to the
probationer, and thus, “[t]hey had no right to interact with [the nephew] in any official
capacity.” Id. at 697-98. The intermediate court continued that, even if there was
authority to conduct a Terry stop,4 the probation officers had no reasonable basis for
detaining the nephew. See id. at 698.
However, the appellate panel explained that the present facts were substantively
different and posited that the Scott decision “left unsettled the situation where, as here,
a parole officer, while performing his official duties in an offender’s home, encounters a
person, other than the parolee, whom the parole agent reasonably believes might be
armed and dangerous.” Mathis, 125 A.3d at 787.
Concluding that other Pennsylvania case law provided little guidance, the
appellate panel found instructive State v. Barnes, No. 15149, 1996 WL 501464 (Ohio
Ct. App. Sept. 6, 1996) (unpublished), in assessing the “ancillary authority” of parole
agents. Id. at *3. In that case, the Ohio Court of Appeals explained that agents, “in the
context of their limited statutory authority to arrest parole violators, . . . possess the
concomitant authority to conduct a weapons frisk of a non-parolee” when circumstances
warrant. Id. at *4. The Ohio court reasoned that “it would be anomalous to hold that
parole officers may carry weapons like peace officers, place themselves in peril like
peace officers, and conduct lawful arrests like peace officers, yet not protect themselves
in the face of apparent danger.” Id.
The Superior Court also cited People v. Rios, 122 Cal. Rptr. 3d 96 (Cal. Ct. App.
2011), in which juvenile probation officers were found to have authority to detain and
pat-down a visitor in the juvenile offender’s home. The Rios court developed that, once
4
See Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).
[J-107-2016] - 6
the officers were lawfully on the premises, it was reasonable for them to determine
whether the juvenile probationer’s association with others present violated the terms of
supervision. In this regard, and following a rationale similar to that employed by the
Barnes court, the California Court of Appeals advanced that the agents’ statutory
authority as peace officers included the right to detain and frisk, so long as it comported
with Terry principles. See id. at 110. The court continued that it would be unreasonable
“[t]o hold . . . that juvenile probation officers could not detain or investigate anyone on
the same premises as the juvenile probationer, no matter the circumstances or officer
safety issues, unless they were accompanied by police or other law enforcement
officers.” Id. The Superior Court also noted that a Louisiana appellate decision
reflected analogous reasoning. See State v. Jones, 78 So. 3d 274, 282 (La. Ct. App.
2011) (“Louisiana law recognizes that law enforcement officers should not be required
to take unnecessary risks [in] performing their duties.”).5
Deeming these cases persuasive, particularly Barnes, the Superior Court
additionally observed that courts have sanctioned a Terry frisk of non-resident visitors to
insure officer safety during the execution of search warrants, see Mathis, 125 A.3d at
789 (citing Ybarra v. Illinois, 444 U.S. 85, 100 S. Ct. 338 (1979); Commonwealth v.
Eichelberger, 352 Pa. Super. 507, 508 A.2d 589 (1986); Commonwealth v. Luddy, 281
Pa. Super. 541, 422 A.2d 601 (1980)), as well as the brief detention and movement of
an arrestee’s companion, regardless of any suspicion of dangerousness, see id. (citing
Commonwealth v. Graham, 685 A.2d 132 (Pa. Super. 1996), rev’d on other grounds,
5
Although not discussed by the Superior Court, pursuant to Louisiana law, “[p]robation
officers [are] deemed to be peace officers and shall have the same powers with respect
to criminal matters and the enforcement of the law relating thereto as sheriffs,
constables, and police officers have in their respective jurisdictions.” LA. CODE CRIM.
PROC. ANN. art. 899; see also LA. STAT. ANN. §15:574.8 (applying an identical provision
to parole officers).
[J-107-2016] - 7
554 Pa. 472, 721 A.2d 1075 (Pa. 1998); In re N.L., 739 A.2d 564 (Pa. Super. 1999)).
In light of the above, the Superior Court concluded as follows:
Within the context of their limited statutory authority over parolees, we
must recognize a parole officer's concomitant authority to conduct a
weapons frisk of a non-parolee when the facts and circumstances would
warrant a reasonably prudent police officer in doing the same. Parole
agents face the same extreme safety risks as police officers, and routinely
encounter persons other than the parolee, who are present during an
arrest and/or search of an approved residence. It is irrational to presume
that a parole agent will only ever encounter his parolee during an arrest or
home visit. We believe that while a parole agent is performing his official
statutory duties, he is entitled to the same protections this Commonwealth
has afforded to police officers with respect to his interaction with third
parties, other than the parolee. Accordingly, we conclude that a parole
agent's statutory authority to detain and arrest parolees includes the
ancillary authority to conduct a weapons frisk of any person present,
during an arrest or home visit, where the parole agent has a reasonable
suspicion that a person searched may be armed and dangerous.
Id. at 789-90.
As pertains to reasonable suspicion supporting the protective frisk, the
intermediate court rejected Appellant’s claim that Agent Welsh’s observation of the
bulge alone was insufficient to justify the belief that he was secreting a weapon or
contraband. The Superior Court noted that the parole agent had developed suspicions
predicated on Appellant’s nervous behavior and furtive handling of his coat. Moreover,
the appellate court explained that the agent “need not be absolutely certain that the
individual is armed; the issue is whether a reasonably prudent [officer] in the
circumstances would be warranted in the belief that his safety or that of others was in
danger.” Mathis, 125 A.3d at 791 (quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883)
(alteration in original). Thus, in the appellate court’s view, the circumstances warranted
a Terry search to secure the agents’ safety. Accordingly, the court affirmed Appellant’s
judgment of sentence.
[J-107-2016] - 8
Appellant sought this Court’s discretionary review, which we granted, to address
the following:
Whether, as a matter of first impression, the Superior Court erred in
affirming the trial court's decision denying [Appellant’s] motion to suppress
evidence where state parole agents lacked authority and subsequently
reasonable suspicion to detain [Appellant] and conduct an investigative
detention in violation of Article I, Section 8 of the Pennsylvania
Constitution and the Fourth Amendment to the United States Constitution?
Commonwealth v. Mathis, 635 Pa. 210, 134 A.3d 51 (2016) (per curiam) (alterations
added). We instructed the parties to “separately address in their briefs the subsumed
and alternate claims respecting (1) the authority of parole agents, and (2) whether
reasonable suspicion existed to support a seizure and a subsequent weapons frisk.” Id.The issue of parole agents’ authority presents a purely legal question, over which our
standard of review is de novo and our scope of review plenary. See Commonwealth v.
Eisenberg, 626 Pa. 512, 532, 98 A.3d 1268, 1279 (2014). As to whether reasonable
suspicion existed, we defer to the suppression court’s findings of fact as supported by
the suppression hearing record, which we assess in the light most favorable to the
Commonwealth as the prevailing party. See D'Amato, 514 Pa. at 482, 526 A.2d at 305;
Logan, 468 Pa. at 429-30, 364 A.2d at 269.6 However, we review any legal conclusions
de novo. See In re L.J., 622 Pa. 126, 138 n.6, 146, 79 A.3d 1073, 1080 n.6, 1085
(2013).
Beginning with the issue of the agents’ authority, Appellant maintains that
Sections 6152 and 6153 limit parole agents’ police power to offenders. He argues that
the lack of express reference to non-parolees or guests of offenders in granting search
powers renders any such conduct illegal. Appellant observes that parole agents may
6
As noted, the suppression court’s lack of factual findings does not impede review of
this matter. See supra note 2.
[J-107-2016] - 9
not act as “stalking horses” for the police, Commonwealth v. Pickron, 535 Pa. 241, 248,
634 A.2d 1093, 1097 (1993), and that the Fourth Amendment has been interpreted as
requiring a statutory framework to direct warrantless searches of a parolee’s residence
in order to protect privacy interests. See id. at 249-50, 634 A.2d at 1098. Appellant
posits that Sections 6152 and 6153 fulfill this role and, based on a plain reading, limit
authority to persons subject to supervision.
Citing a number of Pennsylvania Supreme Court decisions that found various
authorities improperly engaged in criminal law enforcement activities, Appellant
develops that the Court has consistently employed a strict construction in interpreting
the relevant authorizing statutes and has required evidentiary suppression for any
breaches. See, e.g., Commonwealth v. Price, 543 Pa. 403, 672 A.2d 280 (1996)
(holding that FBI agents lack authority to stop and arrest a motorist for vehicle code
violations); McKinley v. PennDOT, Bureau of Driver Licensing, 576 Pa. 85, 838 A.2d
700 (2003) (refusing to permit airport police’s extra-jurisdictional enforcement of the
Implied Consent Law); Kopko v. Miller, 586 Pa. 170, 892 A.2d 766 (2006) (explaining
that sheriffs do not have criminal investigative and arrest authority relative to the
Wiretapping and Electronic Surveillance Control Act); Commonwealth v. Dobbins, 594
Pa. 71, 934 A.2d 1170 (2007) (rejecting the sheriff’s claim of authority to conduct
independent investigations pursuant to The Controlled Substance, Drug, Device and
Cosmetic Act); Commonwealth v. Marconi, 619 Pa. 401, 64 A.3d 1036 (2013) (holding
that sheriffs lack authority to independently establish and conduct suspicionless
roadside sobriety checkpoints); see also Kopko, 586 Pa. at 193, 892 A.2d at 779 (“It is
well settled that when vesting a group with police powers and duties, the Legislature
does so with specificity.” (quoting Commonwealth v. Dietterick, 429 Pa. Super. 180,
185-86, 631 A.2d 1347, 1350 (1993)) (alterations omitted)).
[J-107-2016] - 10
Additionally, Appellant views the Scott decision as factually indistinguishable
from the present circumstances and demonstrative of the limitation on parole agents’
power. He further reasons that the search of a private citizen, even under the guise of
enforcing parole conditions, nonetheless results in the abridgement of a private citizen’s
rights predicated solely on an association with a parolee. Accordingly, Appellant
contends that the evidence should have been suppressed.7
The Commonwealth initially responds by generally agreeing that Section 6153
delineates parole agents’ authority to search offenders. As to Section 6152, deeming
agents as “peace officers,” the Commonwealth posits that the police power to effectuate
arrests of parolees comes with the same dangers and threats that police officers
experience, and therefore, agents have the authority to frisk individuals for weapons to
ensure their safety.
Conceding that no explicit statutory authority grants agents the power to conduct
a Terry frisk of a non-offender, the Commonwealth nonetheless contends that a
protective frisk may be employed while parole agents are performing their statutory
duties. In this respect, the Commonwealth highlights Section 6153(b)(2), which
provides that “nothing in this section shall be construed to permit searches or seizures
in violation of the Constitution of the United States or Section 8 of Article I of the
Constitution of Pennsylvania.” 61 Pa.C.S. §6153(b)(2). From this the Commonwealth
reasons that, since Terry frisks are not statutorily prohibited, they are presumptively
permitted, so long as they do not violate constitutional norms. Along this same line, the
7
The Pennsylvania Association of Criminal Defense Lawyers filed an amicus curiae
brief supporting Appellant, in which it generally reiterates Appellant’s arguments that
there is no statutory authority for agents to conduct protective frisks of non-parolees,
that the decisional law of this Court requires suppression when authorities exceed their
statutory authorization, and that reasonable suspicion did not support the detention and
frisk.
[J-107-2016] - 11
Commonwealth observes that Section 6153 prescribes that “no violation of this section
shall constitute an independent ground for suppression of evidence in any . . . criminal
proceeding.” Id. §6153(c). Thus, from the Commonwealth’s perspective, these
provisions leave open the ancillary authority to perform protective searches.
Regarding Appellant’s reliance on Scott, the Commonwealth disputes that the
case is indistinguishable from the present matter, emphasizing the differing
circumstances in that matter, including that there was no parole violation, the parolee
was not being detained, and there was no indication that the non-offender posed a risk
to the agents. See Scott, 916 A.2d at 698 (“No evidence was presented to suggest the
officers believed [the non-parolee] to be armed and dangerous, warranting a search for
their protection.”). In the Commonwealth’s view, the Scott court anticipated agents’
authority to search under a factual scenario such as the one here.
Additionally, the Commonwealth refutes the notion that permitting Terry searches
would extend an agent’s authority to investigate crimes that are plainly outside of their
statutory grant. The Commonwealth distinguishes the cases that Appellant cites in this
regard, observing that the FBI agents and sheriffs in those instances sought to expand
their authority to encompass police investigative powers; here, the ancillary authority
possessed by parole agents is not one predicated on criminal investigation. Instead,
the Commonwealth continues, the agents merely seek to ensure their own safety and
that of others present, in the course of the duties, which mirrors the rationale employed
in Terry. See Terry, 392 U.S. at 26, 88 S. Ct. at 1882 (explaining that a Terry search is
a limited intrusion “necessary for the discovery of weapons which might be used to
harm the officer or others nearby”).
In terms of parole agent safety, the Commonwealth echoes the Superior Court’s
reasoning that agents face dangers similar to police officers, justifying the protections
[J-107-2016] - 12
afforded by protective searches. See Barnes, No. 15149, 1996 WL 501464, at *4; see
also Rios, 122 Cal. Rptr. 3d 96; Jones, 78 So. 3d 274. The Commonwealth develops
that holding otherwise would place agents at risk like police officers, but without any
mechanism to preclude violent confrontation in the face of apparent danger.
Accordingly, the Commonwealth argues that parole agents’ authority should be
accompanied by the ancillary power to frisk non-offenders who are present in the
parolee’s home when there is reasonable suspicion that the person is armed.
Our view of parole agents’ authority to engage in protective frisks of non-
offenders encountered in the scope of their duties substantively overlaps with the
safety-based rationale advanced by the Superior Court in this matter. In this respect,
we initially agree that the plain language of Sections 6152 and 6153 of the Parole Code
generally delineates the supervisory relationship that parole agents have with offenders,
but does not otherwise reveal a legislative intent to “empower parole agents to act as
police officers with respect to non-offenders or private citizens.” Mathis, 125 A.3d at
785; see also Commonwealth v. Wright, 609 Pa. 22, 48, 14 A.3d 798, 814 (2011) (citing
1 Pa.C.S. §1921(a) (“The object of all interpretation and construction of statutes is to
ascertain and effectuate the intention of the General Assembly. Every statute shall be
construed, if possible, to give effect to all its provisions.”)).
However, the Parole Code imposes a number of duties upon agents, including
supervision of offenders in a manner that will assist in their “rehabilitation and
reassimilation into the community and . . . protect the public.” 61 Pa.C.S. §6153(a). As
the Commonwealth observes, in order to satisfy these statutory duties, parole agents,
among other things, conduct routine, unannounced home visits, as in this case, thus
risking exposure to a variety of potentially dangerous unknowns. In this respect, we find
persuasive, as did the Superior Court, the perspective developed by other jurisdictions.
[J-107-2016] - 13
Once we recognize the authority of parole officers to search parolees and
their premises, . . . we cannot ignore the hazards involved in this kind of
public duty. A bullet's message is deadly no matter who the sender is. A
law-enforcement officer in a potentially perilous situation must have a
basic right of self-protection notwithstanding the shape of his badge. As
long as an officer is properly pursuing his lawful duty, the only issue “is
whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety . . . was in danger.”
People v. Thompson, 353 N.Y.S.2d 698, 702 (N.Y. Sup. Ct. 1974) (second alteration in
original) (citation omitted) (quoting Terry, 392 U.S. at 27, 88 S. Ct. at 1883); see also
Barnes, No. 15149, 1996 WL 501464, at *4; Rios, 122 Cal. Rptr. 3d at 110.8
Moreover, as intimated by the Rios court, see id., interactions with non-offenders
are inherent in parole enforcement activities. For example, parolees are commonly
prohibited from associating with persons who have been convicted of certain offenses,
which in turn may suggest that parole agents are authorized to inquire as to the identity
of non-offenders present during a home visit for the purpose of ascertaining compliance
with parole conditions. See, e.g., N.T., July 28, 2014, at 23 (Agent Welsh noting that
the parolee in this case was prohibited from keeping the company of persons convicted
of drug or weapons offenses); Commonwealth v. Brown, 240 Pa. Super. 190, 195, 361
8
It is also notable that, in some jurisdictions, persons who reside with a parolee are
deemed to have a diminished expectation of privacy as to parole searches of areas of
the home in which the parolee has common control. See State v. Johnson, 748 P.2d
1069, 1073 (Utah 1987) (“A warrantless search of a parolee may result in an invasion of
privacy, at least to some extent, for those living with the parolee. If the Fourth
Amendment rights of nonparolees living with parolees were not reduced, a parolee
could avoid all warrantless parole searches by living with a nonparolee and asserting
the nonparolee's constitutional rights, and thus emasculate one significant feature of the
parole system.” (footnote and citations omitted)), abrogated on other grounds, State v.
Doporto, 935 P.2d 484 (Utah 1997). This concern is lessened in Pennsylvania in
instances where the Board of Probation and Parole requires a “Home Provider
Agreement,” consenting to searches of common areas based on reasonable suspicion,
executed by cohabitants prior to approving the parolee’s living arrangements. See, e.g.,
Commonwealth v. Smith, 85 A.3d 530, 535 (Pa. Super. 2014) (discussing such an
agreement in the context of the consent exception to the Fourth Amendment).
[J-107-2016] - 14
A.2d 846, 848 (1976) (“Conditions established by the Board [of Probation and Parole]
include . . . the responsibility to . . . avoid ‘undesirable’ companions . . ..”). Accordingly,
although ancillary aspects of a parole agents’ duty are not expressly referenced in the
legislation, they nonetheless derive directly from their statutorily imposed functions. In
this way, these corollaries may be viewed as reflecting the “special needs” that warrant
deviations from traditional constitutional precepts in the parole enforcement realm.
Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S. Ct. 3164, 3168 (1987) (“A [s]tate's
operation of a probation system . . . presents ‘special needs' beyond normal law
enforcement that may justify departures from the usual warrant and probable-cause
requirements.”).
As to parole agents’ designation as peace officers, in addition to their
circumscribed common law arrest powers, see generally 5 AM. JUR. 2d Arrest §40 (“[A]
peace officer may arrest [on] reasonable suspicion of felony, whether or not any felony
was actually committed . . ..”), they are statutorily empowered to employ deadly force for
self-protection or protection of another and in the course of making an arrest “when [the
officer] believes that such force is necessary to prevent death or serious bodily injury to
himself or such other person.” 18 Pa.C.S. §508(a)(1). In this respect, it is also notable
that parole agents are sanctioned to carry firearms in performing their duties. See 37
Pa. Code §69.1-.3.
Accordingly, innate to these common law and statutory authorizations is the
power to undertake constitutionally permissive actions that may preempt resort to the
use of deadly force. In other words, an agent’s authority to use force includes the
power to prevent violent confrontation in the first instance, as it “would be anomalous to
hold that parole officers may carry weapons like peace officers, place themselves in
peril like peace officers, and conduct lawful arrests like peace officers, yet not protect
[J-107-2016] - 15
themselves in the face of apparent danger.” Barnes, 1996 WL 501464, at *4; see also
State v. Armstrong, No. 98-1441, 2000 WL 204051, at *3 (Iowa Ct. App. Feb. 23, 2000)
(unpublished) (“We believe . . . a peace officer conducting a pat-down search for
weapons, consensual or otherwise, is acting under the general authority of a peace
officer.” (citations omitted)).
In terms of previous decisions of this Court finding that various officials had
exceeded their statutory authorization, the Commonwealth accurately notes that they
are distinguishable as pertaining to limitations on officials’ criminal investigative powers.
The nature of a Terry frisk is materially different in both scope and purpose from an
investigative search for evidence of criminality, since a protective pat-down is “limited to
that which is necessary for the discovery of weapons which might be used to harm the
officer or others nearby, and may realistically be characterized as something less than a
‘full’ search.” Terry, 392 U.S. at 26, 88 S. Ct. at 1882. “The purpose of a limited search
after a temporary detention is not to discover evidence of crime but to allow the peace
officer to pursue investigation without fear of violence.” Perez v. State, 548 S.W.2d 47,
49 (Tex. Crim. App. 1977) (citations omitted). Critically, the Terry decision did not
depend on any express legislative grant of search powers; rather, the United States
Supreme Court weighed the government interest in protecting officers from the risks
attendant to performing their duties against an individual’s right to be free from intrusion.
See Terry, 392 U.S. at 23-26, 88 S. Ct. at 1881-82.9 In this regard, private citizens’
9
This weighing analysis is distinguishable from that employed in the criminal
investigative context as pertains to the government interest involved. See
Commonwealth v. Blystone, 519 Pa. 450, 462, 549 A.2d 81, 86 (1988) (“[T]he
[Wiretapping and Electronic Surveillance Control Act] strikes a balance between
citizens' legitimate expectation of privacy and the needs of law enforcement officials to
combat crime.”), aff'd sub nom. Blystone v. Pennsylvania, 494 U.S. 299, 110 S. Ct.
1078 (1990).
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Fourth Amendment rights remain substantively unaltered pursuant to our view of parole
agents’ authority to ensure their own safety, since any intrusion must be justified by
reasonable suspicion, the same standard restricting intrusions by police officers.
Thus, although strict statutory interpretation may be appropriate in assessing the
boundaries of criminal investigative powers pursuant to legislative enactments, see
Kopko, 586 Pa. at 193, 892 A.2d at 779 (citation omitted),10 a parole agent’s authority to
conduct a weapons frisk of non-parolees instead attends the agents’ statutory duty to
effectively supervise parolees and is grounded in the powers concomitant to their peace
officer designation. See 61 Pa.C.S §6152 (“An agent is declared to be a peace officer .
. ..”).
As for the Scott decision, we agree with the Superior Court’s assessment that the
case is factually distinguishable insofar as there was no basis for the probation officers
to believe that the nephew posed a threat to anyone’s safety. Accord Mathis, 125 A.3d
at 786-87. In any event, Superior Court decisions are not binding on this Court. See
Craley v. State Farm Fire & Cas. Co., 586 Pa. 484, 498 n.13, 895 A.2d 530, 538 n.13
(2006).
Accordingly, we conclude that parole agents have the authority to conduct a
protective Terry frisk of non-parolees within the course of executing their statutorily
imposed duties, so long as reasonable suspicion supports the agents’ conduct.
Turning to whether Agent Welsh possessed reasonable suspicion to justify the
protective frisk in the present circumstances, Appellant notes that a Terry frisk requires
10
Parenthetically, this asserted strict-interpretation view is arguably in tension with the
liberal construction applied in determining the jurisdictional parameters of other
statutorily empowered state actors. See Commonwealth v. Lehman, 582 Pa. 200, 203-
04, 870 A.2d 818, 820 (2005) (“[T]he [Statewide Municipal Police Jurisdiction Act]
should be liberally construed to achieve its purposes . . ..”).
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the officer to identify “specific and articulable facts” that indicate criminality is afoot,
Terry, 392 U.S. at 21, 88 S. Ct. at 1880, while also demonstrating a legitimate fear for
officer safety, see Commonwealth v. Rodriguez, 532 Pa. 62, 73-74, 614 A.2d 1378,
1383-84 (1992) (citation omitted). He argues that the focus of the inquiry is on the
actions of the defendant, rather than the surrounding circumstances or associates. See
Commonwealth v. Maxon, 798 A.2d 761, 768 (Pa. Super. 2002).
As for criminal conduct, Appellant posits that, since Agent Welsh did not observe
any active use of marijuana, the smell alone did not provide reasonable suspicion.
Further, he emphasizes that the nervous behavior identified by Agent Welsh is not
indicative of criminal activity. See Commonwealth v. Tam Thanh Nguyen, 116 A.3d
657, 668-69 (Pa. Super. 2015). Appellant forwards that his conduct, including his
cooperativeness throughout the encounter, was inapposite to criminality.
Regarding agent safety concerns, Appellant explains that a person’s potential
possession of illicit drugs and nervousness have both been rejected as factors
suggestive of an individual’s dangerousness. See Commonwealth v. Grahame, 607 Pa.
389, 400-01, 7 A.3d 810, 816 (2010); Commonwealth v. Cartegena, 63 A.3d 294, 305-
06 (Pa. Super. 2013) (en banc). Further, Appellant advances that a general description
of a bulge will not support an inference of a perceived danger; instead, decisional law
has required an officer to provide specific details. See, e.g., Commonwealth v. Carter,
105 A.3d 765, 774-75 (Pa. Super. 2014) (en banc). In this respect, he notes that Agent
Welsh could not positively identify what the bulge was prior to the frisk. From
Appellant’s perspective, Agent Welsh had only minimal interaction and offered no
specificity as to his belief that Appellant was armed.
The Commonwealth responds that Agent Welsh had reasonable suspicion to
believe that criminality was afoot and that Appellant presented a danger to the agents’
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safety based on the following facts: the residence’s location in a high-crime area; the
strong odor of marijuana throughout the home; the marijuana roaches in the ashtray;
Appellant’s nervous pacing, unease, and broken eye contact; his nervous and broken
speech; the furtive manner in which Appellant picked up and carried his jacket; the
bulge in the jacket; and the way in which Appellant turned away from Agent Welsh as
he exited the kitchen. The Commonwealth emphasizes that these circumstances must
be assessed together in totality, as opposed to Appellant’s individualized approach.
Agent Welsh’s seven years of experience as a state parole agent are also highlighted
by the Commonwealth. Further, the Commonwealth observes that Appellant’s claim
that Agent Welsh’s uncertainty with respect to whether the bulge was a weapon is
immaterial in light of this Court’s explanation that absolute certainty is not required. See
Commonwealth v. Cortez, 507 Pa. 529, 533, 491 A.2d 111, 113 (1985).
Due to the incremental manner in which Agent Welsh’s safety concerns
developed and his interactions with Appellant, a preliminary assessment of the point at
which Appellant was detained is necessary to determining whether reasonable
suspicion justified the seizure and frisk.
In fixing the moment at which a detention has occurred, “the pivotal inquiry is
whether, considering all the facts and circumstances evidencing the exercise of force, a
reasonable [person] would have thought he was being restrained.” Commonwealth v.
Mendenhall, 552 Pa. 484, 489, 715 A.2d 1117, 1120 (1998) (citing Commonwealth v.
Jones, 474 Pa. 364, 373, 378 A.2d 835, 840 (1977)); see also United States v.
Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980) (“[A] person has been
‘seized’ . . . only if, in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave.”). In
Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884 (2000), the Court set forth a non-
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exhaustive list of factors deemed relevant in assessing whether a seizure has occurred:
the presence of police excesses; physical contact with the suspect; police direction of
the subject’s movements; the demeanor of the officer; the location of the confrontation;
the manner of expression directed to the citizen; and the content of statements or
interrogatories. See id. at 72-73, 757 A.2d at 897-98 (citations omitted). Strickler
cautioned, though, that no single factor dictates the ultimate conclusion as to whether a
detention occurred, see id. at 59, 757 A.2d at 890, and this Court has recognized that
the line between a mere encounter, which requires no suspicion, and an investigative
detention, “cannot be precisely defined ‘because of the myriad of daily situations in
which police[] and citizens confront each other on the street.’” Mendenhall, 552 Pa. at
490, 715 A.2d at 1120 (quoting Jones, 474 Pa. at 371, 378 A.2d at 839). Ultimately, it is
the “nature of the confrontation” that informs the assessment of the totality of the
circumstances. Commonwealth v. Lewis, 535 Pa. 501, 509, 636 A.2d 619, 623 (1994).
Pursuant to the above framework, and viewing the largely undisputed facts in the
light most favorable to the Commonwealth, see D'Amato, 514 Pa. at 482, 526 A.2d at
305, a reasonable person in Appellant’s situation would not feel that he was restrained
from leaving throughout the initial encounter. Appellant was left alone in the kitchen
with clear access to an exit while the agents focused their attention on the parolee in
another room. When Agent Welsh spoke with Appellant, it was in a conversational
tone, and he made polite requests explained in terms of ensuring safety. See
Commonwealth v. Stubblefield, 413 Pa. Super. 429, 437, 605 A.2d 799, 802 (1992)
(indicating that an officer’s inquiry addressed in a conversational tone reflects a mere
encounter). Further, at no time did either agent give the impression that Appellant was
suspected of any wrongdoing, despite the smell of marijuana permeating throughout the
home. See Commonwealth v. Martin, 705 A.2d 887, 891 (Pa. Super. 1997) (“A
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statement by a law enforcement official that a person is suspected of illegal activity is
persuasive evidence that the Fourth Amendment [has] been implicated.”).
Agent Welsh’s statement that he sought to get Appellant out of the house “as
soon as I possibly can” and his request that Appellant move to the front room, N.T., July
28, 2014, at 9, might reasonably be construed as implying that the agent was not yet
permitting Appellant to leave.11 Nevertheless, given the context and nature of the
limited, non-confrontational interaction to that point, that sole potential inference does
not transform the encounter into a seizure, particularly as Appellant noted that Agent
Welsh was merely communicating urgency for him to leave. See Mendenhall, 552 Pa.
at 489–90, 715 A.2d at 1120 (reasoning that the officer’s instruction to the driver to
“stick around,” while evidencing a demonstration of authority, did not result in a
detention, since the motorist was otherwise permitted to freely move around and in and
out of the vehicle); Martin, 705 A.2d at 891 (explaining that a police officer’s request to a
suspected drug dealer to move outside of a restaurant for questioning, performed in a
“non-threatening manner” and in the absence of coercion or intimidation, did not
constitute a seizure (citing Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889 (1968))).
In this regard, all interactions with law enforcement may be viewed, to some
degree, as a show of authority to which people usually accede. However, the free-to-
leave test is not to be employed in such a literal manner so as to require application of
Fourth Amendment exclusionary remedies to all police encounters. As one
commentator explains,
Implicit in the introduction of the [officer] and the initial questioning is a
show of authority to which the average person encountered will feel
11
As Agent Welsh further explained, he intended to ask Appellant for identification once
in the front room. See N.T., July 28, 2014, at 23. The agent, however, did not make
this known to Appellant.
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obliged to stop and respond. Few will feel that they can walk away or
refuse to answer. . . . Thus, if the ultimate issue is perceived as being
whether the suspect ‘would feel free to walk away,’ then virtually all police-
citizen encounters must in fact be deemed to involve a Fourth Amendment
seizure. The Mendenhall-Royer standard should not be given such a
literal reading as to produce such a result. . . . Rather, the confrontation is
a seizure only if the officer adds to those inherent pressures by engaging
in conduct significantly beyond that accepted in social intercourse.
See Wayne R. LaFave, 4 SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT
§9.4(a) (5th ed. 2016) (quotation marks and footnotes omitted).
Thus, and reviewing the facts favorably to the Commonwealth, Appellant was not
detained until Agent Welsh reached out and seized the jacket. Turning to whether, at
that time, Agent Welsh’s actions were justified, we agree with the Commonwealth that
the underlying facts establish reasonable suspicion that Appellant posed a danger to the
officers.12 Most notably, Appellant displayed nervous behavior and speech, and the
agent observed him carefully cradling a jacket containing a prominent bulge
approximately the size, and potential shape, of a handgun. As Appellant moved, he
angled himself in a manner calculated to conceal the jacket from the agent. Under
these circumstances, the agent was justified in investigating further in order to ensure
that the object was not a firearm. Although Appellant correctly notes that some of the
considerations recited above, when viewed in isolation, would not support a Terry frisk,
he fails to appreciate that inferences may be drawn by evaluating these items
12
Although Agent Welsh testified that, in addition to safety reasons, he intended that
Appellant not leave the residence with drugs, see N.T., July 28, 2014, at 31, this
subjective alternative basis for the frisk does not invalidate the protective search, since
the agent articulated objective, permissible grounds for the intrusion. See Ohio v.
Robinette, 519 U.S. 33, 38, 117 S. Ct. 417, 420-21 (1996) (“[T]he fact that an officer
does not have the state of mind which is hypothecated by the reasons which provide the
legal justification for the officer's action does not invalidate the action taken as long as
the circumstances, viewed objectively, justify that action.” (alteration omitted) (quoting
Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774 (1996))).
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collectively. See Commonwealth v. Cook, 558 Pa. 50, 58, 735 A.2d 673, 677 (1999)
(citations omitted). When so assessed, the specific facts articulated by the officer
warranted his belief that Appellant may have posed a threat to the safety of the officer
and others within the residence. Accord Mathis, 125 A.3d at 790-91.13 That being the
13
To the extent Appellant argues that a Terry frisk in this context also requires
reasonable suspicion that the subject is engaged in criminality, such suspicion was
present in this case. By the time of the seizure, the agent had developed individualized
reasonable suspicion that Appellant may be harboring contraband related to the
evidence of recent marijuana use and/or a weapon. See N.T., July 28, 2014, at 11
(describing that, when Appellant picked up his coat, he held it “like it was a baby [with] a
protecting type of grip,” and noting that his nervous behavior, the manner in which he
was turning away from the agent as he walked, and the bulge in his jacket raised the
agent’s suspicions that he may have been “trying to remove contraband [or] has
something that could be unsafe to my partner or my offender”).
Given that the agent possessed reasonable suspicion of both danger and criminality, we
need not determine whether, or under what circumstances, a parole agent -- who is
lawfully inside a private residence, in the performance of official duties, and reasonably
concerned about safety -- may perform a weapons frisk of a non-parolee, even in the
absence of reasonable suspicion of criminality. This issue would be more sharply
presented in a case where the suspicion related to danger alone.
Contrary to Justice Wecht’s proffer that the two-tiered Terry analysis is inviolable, see
Dissenting Opinion, slip op. at 7 n.9 (Wecht, J.), courts have acknowledged that there
are circumstances in which protective police actions predicated on Terry principles do
not require a suspicion of criminality. See, e.g., Commonwealth v. Narcisse, 927
N.E.2d 439, 445 n.6 (Mass. 2010) (“There are, of course, circumstances other than
consensual encounters in which police officers may pat frisk a person in the absence of
a reasonable suspicion that the person is (or has been) engaged in criminal activity.”
(citing, inter alia, Maryland v. Buie, 494 U.S. 325, 110 S. Ct. 1093 (1990)); see also
United States v. Flippin, 924 F.2d 163, 166 (9th Cir. 1991) (“When the police have
lawfully entered a dwelling and have a reasonable suspicion that a suspect is armed, a
Terry pat down for weapons is permissible.”). Indeed, the two United States Supreme
Court cases cited in Justice Wecht’s dissent relative to this discrete matter, see
Dissenting Opinion, slip op. at 7 n.9 (Wecht, J.), highlight pertinent considerations that
may, in the proper situation, support a frisk absent individualized reasonable suspicion
of criminality.
(continued…)
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case, and in light of the suspicion of criminality, see supra note 13, the officer’s actions
did not violate Appellant’s constitutional rights.
Accordingly, the order of the Superior Court is affirmed.
Justices Baer, Todd and Mundy join the opinion.
Justice Dougherty files a dissenting opinion in which Justice Donohue joins.
Justice Wecht files a dissenting opinion.
(…continued)
In Arizona v. Johnson, 555 U.S. 323, 129 S. Ct. 781 (2009), for example, the Court
effectively waived the requirement of reasonable suspicion of criminality relative to
automobile passengers. See id. at 326-27, 129 S. Ct. at 784. The Court reasoned as
follows:
[Although], in a lawful traffic stop, there is probable cause to believe that
the driver has committed a minor vehicular offense, . . . there is no such
reason to stop or detain the passengers. On the other hand . . . the risk of
a violent encounter in a traffic-stop setting stems not from the ordinary
reaction of a motorist stopped for a speeding violation, but from the fact
that evidence of a more serious crime might be uncovered during the stop.
Id. at 331-32, 129 S. Ct. at 787 (citations and quotation marks omitted). Such a
rationale could arguably be employed when considering the encounters that occur
between non-parolees and parole agents during a home visit, particularly when viewed
in reference to the Supreme Court’s acknowledgement that in-home confrontations
present a particularized danger. See, e.g., Buie, 494 U.S. at 333, 110 S. Ct. at 1098
(explaining that in-home encounters are as, or more, dangerous than on-the-street or
roadside confrontations, since the officer is on the adversary’s “turf” and in a confined
setting of unknown configuration).
In any event, as already emphasized, the present factual circumstances do not require
resolution of such considerations.
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