Commonwealth v. Mathis

J. A18001/15
2015 Pa. Super. 201
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DARRIN ORLANDO MATHIS, : No. 2099 MDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, November 25, 2014,
in the Court of Common Pleas of Dauphin County
Criminal Division at No. CP-22-CR-0000174-2014
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.
OPINION BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 22, 2015
Darrin Orlando Mathis appeals from the judgment of sentence entered
on November 25, 2014, in the Court of Common Pleas of Dauphin County
following his conviction for possession of a firearm by a prohibited person,1
small amount of marijuana,2 and possession of drug paraphernalia.3 In this
appeal, we are asked to determine if a state parole agent is legally
authorized to detain, question, and perform a protective frisk of a person,
other than the parolee, who was present during a routine check of the
1
18 Pa.C.S.A. § 6105(a)(1).
2
35 P.S. § 780-113(a)(31).
3
35 P.S. § 780-113(a)(32).
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parolee’s approved residence when the parole agent has a reasonable
suspicion that the person is armed and dangerous.
On December 2, 2013, at approximately 8:00 p.m., Michael Welsh and
Gregory Bruner, agents for the Pennsylvania Board of Probation and Parole,
conducted a routine parole check of parolee Gary Waters at 2503 Agate
Street, Harrisburg, Pennsylvania. Agent Welsh described the area as a “high
crime, high drug area.” (Suppression hearing transcript, 7/28/14 at 4-5.)
Agent Welsh had supervised Waters on and off since 2010 and had made
several previous parole checks at this approved residence.
Upon arrival, Agent Welsh made contact with Waters and was invited
into the residence. Agent Welsh testified that when he got to the door,
there was a strong odor of marijuana, and he noticed the smell of marijuana
increasing as he went throughout the house. (Id. at 7.) Appellant was
seated in the kitchen and Waters, a barber by trade, was giving him a
haircut. Waters introduced Agent Welsh as his parole officer. Agent Welsh
then took Waters into the center room, talked to him about the marijuana,
and placed Waters in handcuffs. (Id. at 7-8.)
In the meantime, while Agent Welsh dealt with Waters, Agent Bruner
maintained visual eye contact on appellant. As Agent Welsh was speaking to
Waters, Agent Bruner said, “hey, Mike. He came over, got my ear real
quick” and said that appellant “was now standing in the kitchen on his cell
phone pacing back and forth. Said he seemed pretty nervous.” (Id. at 9.)
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Agent Welsh then went to the kitchen to “establish some type of rapport
with [appellant].” (Id.) Agent Welsh asked appellant to put away his cell
phone. Appellant was compliant but “was still kind of moving around a little
bit.” (Id.) Agent Welsh said, “hey, 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.) Agent Welsh “wanted to have
everybody in a centralized location so [he] could maintain a visual on
everyone.” (Id. at 10.) Agent Welsh explained that it is typical for agents
to check all individuals in the residence for warrants to see if they are
wanted persons and to know with whom parolees are associating since it is a
violation to be with persons convicted of drug or gun offenses. (Id. at 23.)
Agent Welsh noticed a green jacket on the bench beside appellant.
Agent Welsh testified, “It was kind of funny how he picked it up.” (Id. at
10.) Instead of putting the jacket on, appellant “real gently placed a hand
underneath the jacket and over top of the jacket and kind of held it up to his
body like it was a football” and was “holding this thing like it was a baby . . .
being real gentle with it.” (Id. at 10-11.) Agent Welsh testified that “kind
of raised some concerns with me, that and his nervous demeanor at the
time.” (Id. at 11.) Agent Welsh described the situation:
[A]s I had him walking out there, he was
protecting, he, like, had a protecting type of grip
over top this jacket. And I was thinking, this isn’t
right. Maybe he’s trying to remove contraband from
my offender’s house, maybe he has something that
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could be unsafe to my partner or my offender that’s
sitting in the front room.
As he was walking around, he was kind of
turning away from me. At that point in time,
whenever he was passing me when I was in the --
what would be the formal dining room, I guess, right
before the living room, I noticed that there was a
bulge in it.
And I kind of just reached out -- well, I asked
him. I’m like, hey, hold on a second bud, I need to
pat you down. I’m a little concerned with the way
you’re acting. He told me he did not feel
comfortable with me patting him down and pulled
the jacket closer to his body.
At that point, I noticed the bulge in the jacket,
reached out just to touch it. Felt it, what I felt to be
an identifiable handle of a firearm.
Id. at 11-12.
Agent Welsh’s initial thought was, “Oh, [expletive] I just grabbed a
gun by the handle.” (Id. at 36.)
Next, Agent Welsh “grabbed [the jacket] pretty forcefully” to try and
pull it away from appellant. Appellant pulled back on it. Agent Welsh pulled
once again and threw it down to the floor behind him. (Id. at 12.)
Agent Welsh illuminated his Taser on appellant4 and instructed appellant to
put his hands behind his back. Appellant complied and was handcuffed.
4
Agent Welsh did not “tase” appellant. He only illuminated him with the
light to make the presence of the taser known, in order to gain immediate
compliance, at which time appellant was compliant. Appellant did not need
to be tased. (Id. at 13.)
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Agent Bruner walked over to the jacket and confirmed the presence of a
firearm. (Id. at 12-14.)
Agent Welsh told appellant to sit on the couch. A pat-down search did
not reveal any further contraband. Agent Welsh noticed a bag of marijuana
on the floor in between appellant’s feet. (Id. at 13-14.) Agent Welsh called
police dispatch for assistance. Officer Allison Shuff of the Harrisburg City
Police Department arrived on the scene. Appellant was read his Miranda
rights and agreed to speak without an attorney. (Id. at 40.) Appellant
claimed ownership of the firearm and the marijuana. Officer Shuff collected
the firearm for evidence, which contained a magazine and a round in the
chamber. (Id. at 41.) Officer Shuff ran appellant’s criminal history and
found he was a person not to possess a firearm due to prior charges.
Appellant moved to suppress evidence on June 18, 2014. A
suppression hearing was held on July 28, 2014. The trial court denied
appellant’s suppression motion on October 29, 2014.5
5
Apparently, due to emergency health reasons, the suppression court did
not enter findings of fact or conclusions of law on the record at the
conclusion of the suppression hearing in accordance with
Pa.R.Crim.P. 581(I). Furthermore, the court did not file a Rule 1925(a)
opinion. However, in these particular circumstances, this poses no
substantial impediment to our meaningful and effective appellate review. It
is abundantly clear that the suppression court credited Agent Welsh’s version
of events and concluded that Agent Welsh had a reasonable basis to detain
and frisk appellant. We have carefully reviewed the suppression hearing
transcript and note that appellant presented no uncontradicted evidence.
Further, the question concerning the scope of the power and authority of
state parole agents is a pure question of law. As with any question of law,
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A stipulated bench trial was held on November 25, 2014, after which
appellant was found guilty. He was sentenced the same day to an aggregate
term of 32 to 64 months in a state correctional institution.
On appeal, appellant argues that there is no statutory authority
conferred on state parole agents to question or perform an investigative
detention of non-parolees or guests of parolees. He asserts that
Section 6153 of the Prisons and Parole Code, 61 Pa.C.S.A. § 6153,
authorizes state parole agents to detain and conduct searches of their
parolee only. He argues that Agent Welsh had no authority to interact with
him in any capacity because he was not a parolee. He contends that the
discovery of the marijuana, paraphernalia, firearm, and his admission were
all illegally obtained and should have been suppressed. Appellant also
argues that, assuming arguendo, Agent Welsh had some authority over
him, Agent Welsh lacked reasonable suspicion to conduct a Terry6 frisk in
violation of the Fourth Amendment.
Our standard of review in addressing a challenge to the denial of a
suppression motion is limited to determining whether the suppression court’s
factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because the Commonwealth
our review of the trial court’s decision is plenary and de novo. West
Mifflin Area Sch. Dist. v. Zahorchak, 4 A.3d 1042, 1048 (Pa. 2010).
6
Terry v. Ohio, 392 U.S. 1 (1968).
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prevailed before the suppression court, we may consider only the evidence
of the Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as a whole.
The suppression court’s legal conclusions are not binding on an appellate
court, whose duty it is to determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review. Commonwealth v. Jones, 988 A.2d 649,
654 (Pa. 2010) (citations, quotations, and ellipses omitted). Moreover,
appellate courts are limited to reviewing only the evidence presented at the
suppression hearing when examining a ruling on a pre-trial motion to
suppress. See In re L.J., 79 A.3d 1073, 1083-1087 (Pa. 2013).
State parole agents are employed by the Pennsylvania Board of
Probation and Parole. The Prisons and Parole Code sets forth the authority
of state parole agents. Section 6152 of the Prisons and Parole Code declares
parole officers to be “peace officers” and gives them limited police power
and authority to arrest, without warrant, parolees under the supervision of
the Parole Board.
6152. Status as peace officers.
An agent is declared to be a peace officer and is
given police power and authority throughout this
Commonwealth to arrest without warrant, writ, rule
or process any parolee or probationer under the
supervision of the board for failing to report as
required by the terms of his probation or parole or
for any other violation of the probation or parole.
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61 Pa.C.S.A. § 6152 (emphasis added).
Section 6153 of the Prisons and Parole Code sets forth the bounds in
which parole agents may search offenders:
6153. Supervisory relationship to offenders
(a) General rule.--Agents are 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.
(b) Searches and seizures authorized.--
(1) Agents may search the person and
property of offenders in
accordance with the provisions of
this section.
(2) 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.
(c) Effect of violation.--No violation of this
section shall constitute an independent ground
for suppression of evidence in any probation or
parole proceeding or criminal proceeding.
(d) Grounds for personal search of offender.--
(1) A personal search of an offender
may be conducted by an agent:
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(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 agent 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 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
agent 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
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search. If the offender is not
present during a property search,
the agent 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
agents.
(ii) Information provided by
others.
(iii) The activities of the
offender.
(iv) Information provided by
the offender.
(v) The experience of agents
with the offender.
(vi) The experience of agents
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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61 Pa.C.S.A. § 6153 (emphasis added).
The Prisons and Parole Code speaks in terms of the parole agent’s
police power and authority with respect to the supervision of his parolees,
probationers, and/or offenders only. It gives parole agents all of the powers
of a police officer with respect to offenders under their jurisdiction. The
Prisons and Parole Code does not empower parole agents to act as police
officers with respect to non-offenders or private citizens.
In Commonwealth v. Scott, 916 A.2d 695 (Pa.Super. 2007), appeal
denied, 937 A.2d 445 (Pa. 2007), this court reviewed the scope of a county
probation officer’s police power and authority over a private citizen under
the 1941 Parole Act, formerly 61 P.S. § 331.27.7
In Scott, Jonathan Scott visited the home of his uncle, Mark McDowell,
an offender serving probation. When he arrived, two Northumberland and
Union County probation officers were waiting at the door to conduct a
routine home visit. Scott knocked on the door, which caused it to open.
Scott entered the home, and the probation officers followed. Scott then
picked up a black bag that belonged to him and was leaving the home when
one of the probation officers commanded him to stop. Scott, 916 A.2d at
697. The probation officers then questioned Scott about the bag, asking him
7
Former § 331.27 of the 1941 Parole Act went into effect January 16, 1996,
and is now codified at 61 Pa.C.S.A. § 6152 and § 6153 (the Prisons and
Parole Code).
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who it belonged to, and whether they could look inside. Scott stated that
the bag was his and he refused their request to open it. Id. The probation
officers stated that they had a right to look into the bag because it came
from an offender’s residence. Believing the probation officers had authority
to search the bag, Scott handed it to them. The probation officers opened
the bag to discover marijuana and scales. Id.
The trial court granted suppression, finding the probation officers’
claim of authority was false as the probation officers only possessed
statutory authority to search the uncle. This court affirmed and held that
the probation officers possessed police power and authority only as to
offender McDowell, and none as to Scott. Scott was “a private citizen not
subject to any supervisory authority of the probation officers. They had no
right to interact with him in any official capacity.” Id. at 697-698. This
court explained:
[U]nless there are exigent circumstances, none of
which existed here, a search of McDowell’s residence
must have been supported by reasonable suspicion
that ‘the real or other property in the possession of
or under control of the offender contains contraband
or other evidence of violations of the conditions of
supervision.’ That is to say, if there had been
evidence McDowell was under supervision for a drug
offense, then perhaps the officers would have had
reasonable suspicion for the search, but they still
would have needed a supervisor’s approval absent
exigent circumstances. Here, no such suspicion
existed; in fact, Officer Yasenchak testified his sole
purpose for being at McDowell’s residence was to
conduct a routine home visit, and Officer Kerstetter
testified he went along on the ‘spur of the moment.’
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Even if one were to concede the officers had the
‘right’ to conduct a Terry stop, which this Court
specifically denies, the officers had no reasonable
basis (suspicion) upon which to detain [Scott]. Once
the bag was removed from the premises by [Scott],
the officers had no authority to detain [Scott],
search the bag that he removed from McDowell’s
residence, or do anything other than perhaps call the
police on McDowell’s behalf, if they believed the bag
was being stolen. No evidence was presented to
suggest the officers believed [Scott] to be
armed and dangerous, warranting a search for
their protection.
Id. at 698 (emphasis added) (citations and footnote omitted).
At first glance, Scott appears to control. However, because the case
at hand involves a factual scenario which is measurably different than in
Scott, we hesitate to apply Scott summarily without further analysis.
In Scott, there were no “exigent circumstances” which justified a
search of McDowell’s residence or the bag.8 The officers had no reasonable
basis to suspect that the bag contained contraband or other evidence of
8
Absent exigent circumstances, a “property” search may be conducted by
an agent with prior approval from his supervisor if there is reasonable
suspicion to believe that the real or other property in the possession or
under the control of the offender contains contraband or other evidence of
violations of the conditions of supervision. 61 Pa.C.S.A. § 6153(d)(2).
Parole officers are authorized to “arrest without warrant, writ, rule or
process any parolee or probationer under the supervision of the board for
failing to report as required by the terms of his probation or parole or for
any other violation of the probation or parole.” 61 Pa.C.S.A. § 6152.
A “personal” search of an offender may be conducted by an agent if
there is reasonable suspicion to believe that the offender possesses
contraband or other evidence of violations of the conditions of supervision.
61 Pa.C.S.A. § 6153(d)(1).
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violations of the conditions of McDowell’s supervision. Having no right to
conduct a search of the bag, the probation officers had no legal basis to
detain Scott, ask to inspect the bag, or prevent him from removing the bag
from the residence. Further, as the Scott court pointed out, there was no
evidence that the probation officers believed Scott to be “armed and
dangerous” which would have warranted a search of the bag “for their
protection.” Id. at 698.9
Here, Agent Welsh’s contact with appellant involved an investigative
detention and protective frisk based on his belief that appellant had
something that was unsafe to his partner and Waters. The Scott court
plainly 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. In fact, the Scott court leaves open the possibility
that in some limited “exigent” circumstances, a frisk may be warranted.
9
Appellant also relies on Commonwealth v. Dobbins, 934 A.2d 1170 (Pa.
2007), as another example of a “person in a non-police authoritative
position.” (Appellant’s brief at 20.) In Dobbins, our supreme court
concluded that absent specific statutory authorization, sheriffs lacked
authority to conduct independent investigations under the Controlled
Substances Act, including the seeking of search warrants where no breach of
the peace or felony occurred in their presence. We find Dobbins to be
distinguishable because it did not involve, as here, the legality of
spur-of-the-moment action taken by the sheriffs to prevent the removal of
contraband from the residence and/or minimize their risk of harm.
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Unfortunately, there is little guidance in the way of published law in
this Commonwealth. However, we find instructive the decisions of courts in
other jurisdictions that have considered this question. In Ohio v. Barnes,
1996 WL 501464 (Ohio App. 2 Dist. 1996),10 two parole officers visited the
home of Henry Harris for the purpose of arresting Harris for violations of the
conditions of his parole. Kyle Barnes was in a bedroom with Harris on the
second floor of the home. The parole officers immediately arrested Harris.
The parole officers noticed that Barnes was behind a dresser, wearing a
waist-length coat on a warm day. The parole officers also noticed that
Barnes’ hands were concealed from view, and he avoided eye contact. The
parole officers asked Barnes to step aside so they could search the area
where Barnes stood. Barnes moved aside, removed his hands from his
pockets, and began moving towards the parole officers. One parole officer
told Barnes that he was going to have to pat him down for the parole
officers’ own safety. Before the parole officers could pat him down, Barnes
admitted to having a gun, withdrew a .38 caliber revolver, and placed the
gun on a dresser. The parole officers then handcuffed Barnes and placed
10
While Barnes was an unpublished decision, it has since been accepted as
the law in Ohio. See Washington v. Department of Rehabilitation and
Correction, 853 N.E.2d 372 (Ohio App. 2006); Washington v. Ohio
Department of Rehabilitation and Correction, 2004 WL 1945675 (Ohio
App. 2004) (parole officer has authority to search a third party when
arresting a parolee while the third party is present at the time of the arrest if
parole officer has a reasonable suspicion that her safety and safety of the
other officers present is in danger).
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him in a chair until Dayton police arrested him. After he was convicted of
various firearm offenses, Barnes appealed. Barnes challenged the parole
officers’ legal authority to detain a non-parolee. He argued that under Ohio
Revised Code, RC 2967.15, parole officers were law enforcement officers for
the limited purpose of exercising their statutory authority to arrest parole
violators. The issue before the court was whether the parole officers
possessed some “ancillary authority” to pat down and arrest Barnes in the
course of arresting Harris, who was a known parole violator. The Ohio
appeals court held that the parole officers possessed a legal basis to demand
to pat down Barnes.
The Ohio appeals court held that the parole officers’ Terry frisk of
Barnes was supported based on the confined space the officers were working
in, drugs in extremely close proximity to the third party, his demeanor, the
parole officers’ inability to see his hands, unusual attire (a coat on a warm
day), and his movement towards one parole officer. The court explained:
Under these circumstances, we believe the officers
possessed a reasonable fear for their safety and a
reasonable suspicion that Barnes might be armed.
Consequently, in addition to their statutory authority
to arrest Harris, we believe they also possessed the
ancillary authority to conduct a weapons frisk of
Barnes. Indeed, it would be anomalous to hold that
parole officers may carry weapons like peace
officers, place themselves in peril like peace officers,
yet not protect themselves in the face of apparent
dangers. Thus, in the context of their limited
statutory authority to arrest parole violators, we hold
that parole officers possess the concomitant
authority to conduct a weapons frisk of a
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non-parolee when the facts and circumstances would
warrant a reasonably prudent peace officer in doing
the same.
Id.
With regard to the parole officers’ arrest of Barnes, the Ohio appeals
court held that despite the limited statutory authority to arrest parole
violators, the parole officers possessed the authority, along with any private
person, to conduct a warrantless arrest when they have reasonable grounds
to believe that a felony has been committed. “At that point, the parole
officers possessed the same authority as any other person to place Barnes
under ‘citizen’s arrest.’” Id.
In People v. Rios, 122 Cal.Rpt.3d 96 (5th Dist. 2011), a juvenile
probation officer acted within his authority as a peace officer to enforce
conditions of probation when he detained and patted down an individual who
was present in a probationer’s house. There, six probation officers went to a
probationer’s residence to conduct a routine home visit of a high risk
juvenile probationer. The probationer was subject to gang and drug
probation conditions. When the probation officers entered the home, they
observed Florencio Rios sitting on the couch. Rios had what reasonably
appeared to be visible gang tattoos on his face and hand. When the
probation officers asked Rios his name and why he was at the residence,
Rios was evasive and belligerent. Given the heat of the day, the probation
officers found it unusual that Rios was wearing layers of clothing. Id. at
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101. As one probation officer moved in front of Rios, Rios turned his body
away and leaned forward slightly. Each time the probation officer took a
step further in front of him, Rios leaned forward farther, pushing his right
forearm against his waist and turning his shoulder away from the officer.
Id. at 102. Based on everything he noticed, including Rios’ clothing,
evasiveness, and mannerisms, the probation officer believed Rios was trying
to hide a weapon. He asked Rios to stand up so he could pat him down.
Rios resisted. Believing Rios had a weapon, and concerned for his safety
and that of the other officers, the probation officer and another officer forced
Rios to the ground and handcuffed him. Officers found a loaded gun and a
switch blade on Rios.
At the suppression hearing, Rios argued that he could not be lawfully
detained merely because he was a visitor in a probationer’s home. The
California court of appeals disagreed and found that once probation officers
were lawfully on the premises, it was reasonable for the officers to
determine whether the probationer’s association with Rios was a probation
violation. Next, Rios argued that the search of his person was illegal
because under Section 830.5 of the California Penal Code, the probation
officers’ “peace officer powers” extended only to the juvenile probationer.
The California appeals court, relying on Terry, first held that the probation
officers acted reasonably under the circumstances in performing the
pat-down of Rios to determine if he was armed and dangerous. The court
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also found that the probation officers were acting within the scope of their
authority under Section 830.5(a)(1) of the Penal Code when they
encountered Rios, and “[t]his authority included the right to detain Rios and,
under the situation as it developed, to frisk him for weapons.” Id. at 110.
The court reasoned:
[T]o hold otherwise would mean 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. We decline
to give section 830.5 subdivision (a) such a limited,
unreasonable reading.
Id.
In State v. Jones, 78 So. 3d 274 (La. App. 2011), two probation and
parole officers went to a residence to arrest Sharon Evans for absconding
from probation supervision. As the probation and parole officers walked
down the hallway, they encountered Ernest Jones leaving a bathroom. One
officer discovered a .22 rifle in a closet and informed the other officer who
had remained with Jones. Jones was handcuffed for safety reasons. Prior to
patting Jones down, the parole officer asked Jones if he had any weapons.
Jones denied having weapons but admitted to having narcotics. Jones was
later convicted of possession with the intent to deliver. On appeal, Jones
challenged the denial of his motion to suppress. Jones argued that the
probation and parole officers did not have the authority to interrogate,
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detain, handcuff, and search him because he was not a probationer or
parolee being supervised by those probation officers. Id. at 280.
On appeal, the Louisiana court of appeals affirmed. Noting that law
enforcement officers should not be required to take unnecessary risks in
performing their duties, the court held that due to safety concerns the
probation officer was justified in handcuffing Jones once the other officer
alerted him that a gun was found.
We find these cases persuasive, especially the court’s reasoning in
Barnes. Our state and federal courts have consistently acknowledged the
dangers facing police officers during execution of search warrants and have
sanctioned their ability to conduct a Terry frisk of nonresident visitors (not
named in the warrant) to insure officer safety. Ybarra v. Illinois, 444 U.S.
85 (1979); Commonwealth v. Eichelberger, 508 A.2d 589 (Pa.Super.
1986), alloc. denied, 531 A.2d 427 (Pa. 1987); Commonwealth v.
Luddy, 422 A.2d 601 (Pa.Super. 1980). Pennsylvania has also embraced a
rule which permits a police officer, during an arrest, to (1) briefly detain and
direct the movement of an “arrestee’s companion” regardless of whether a
reasonable suspicion exists that the companion is involved in criminal
activity; and (2) conduct a pat-down search of the companion if the officer
has a reasonable and articulable suspicion that the arrestee’s companion is
armed and dangerous. Commonwealth v. Graham, 685 A.2d 132
(Pa.Super. 1996), rev’d on other grounds, 721 A.2d 1075 (Pa. 1998).
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See also, In re N.L., 739 A.2d 564 (Pa.Super. 1999) (an arrestee’s
companion may be stopped and frisked by a police officer when there is
reasonable suspicion that the companion is armed and dangerous).
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.
Appellant contends that, even assuming arguendo, Agent Welsh had
some authority over him, Agent Welsh did not have “reasonable suspicion”
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that appellant was armed and dangerous to warrant a Terry frisk.11
Appellant asserts that he was subjected to an illegal frisk of his jacket based
on Agent Welsh’s “hunch” or “unparticularized suspicion” that he was either
removing drugs or concealing a weapon. Appellant contends that
Agent Welsh saw a bulge in appellant’s jacket; however, he did not
necessarily know it was a firearm. Agent Welsh testified,
Q. And what made you think it was a firearm?
A. I didn’t necessarily know it was a firearm. It
was some kind of contraband. There was
something inside the jacket. I could tell there
was a shape inside of that jacket. I didn’t
want him removing contraband and/or
weapons from that house, and I did not want
him taking a potential weapon where I had
unaware people, like my partner, and
Mr. Waters.
11
Appellant also claims that his “mere presence” during the routine parole
visit was an insufficient ground, in and of itself, for a protective pat-down.
Ybarra; Appeal of J.V., 762 A.2d 376 (Pa.Super. 2000) (police executing a
search warrant for drugs at a residence may not perform a pat-down for
weapons on anyone merely present on the premises. Where the warrant
does not authorize the search of the individual, police must be able to cite
specific facts establishing a reasonable belief that the individual was armed
and dangerous to legitimize a Terry frisk). He argues that Pennsylvania
courts have rejected the “guns follow drugs” justification for protective
sweeps for weapons. Commonwealth v. Grahame, 7 A.3d 810 (Pa.
2010). In Grahame, the court held that a police officer lacked reasonable
suspicion to conduct a warrantless search of a woman’s handbag for safety
reasons based solely on the fact that she was present inside a residence in
which another individual had been selling drugs approximately ten minutes
earlier. There, the officers did not detect any unusual behavior or furtive
movements on the woman’s part nor did they observe a suspicious bulge in
the purse. While Grahame stands for the principle that a companion may
not be “automatically” patted down, appellant was not detained and frisked
merely because he was present at Waters’ approved residence getting a
haircut.
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Suppression hearing transcript, 7/28/14 at 13.
First, Agent Welsh did not place his hand on appellant’s jacket based
solely on his observation of the “bulge.” Agent Welsh testified that, even
before he saw the bulge, he thought appellant “possibly could have been
armed” or trying to remove other contraband from his parolee’s residence.
(Suppression hearing transcript, 7/28/14 at 11, 35.) Agent Welsh testified
that he did not intend to conduct a pat-down of appellant “until appellant
started getting nervous. Whenever he started holding that jacket like it was
a baby, I knew through my experience, through observing people’s
demeanors over my years of experience that something was not right.” (Id.
at 31.)
In any event, Agent Welsh did not need to be absolutely certain that
the bulge was a gun to believe that his safety or the safety of others was in
danger. Although a weapons frisk must be strictly circumscribed by the
exigencies that justify it, “[t]he officer 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.” Terry, 362 U.S. at 27. Commonwealth v.
Mesa, 683 A.2d 643 (Pa.Super. 1996) (police may pat down for weapons as
safety precaution and may investigate bulge in clothing to see if it is a
weapon); see also People v. Miles, 242 Cal. Rptr. 107, 110 (1987) (officer
had reasonable suspicion to conduct pat-down search when he saw an
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“exaggerated bulge” in defendant’s left jacket pocket and the manner in
which the jacket swung, the officer “knew it was some type of heavy object,
possibly a gun”); Byrd v. United States, 579 A.2d 725, 729 (D.C. 1990)
(officer had reasonable grounds to frisk defendant upon seeing a bulge in
defendant’s pocket which officer thought could possibly be a gun). See also
Commonwealth v. Cortez, 491 A.2d 111, 113 (Pa. 1985), cert. denied,
474 U.S. 950 (1985) (“We cannot demand of our police that they determine
with one hundred percent certainty that criminal activity is afoot or that a
person is armed before they take protective steps”). We do not agree with
appellant that this was a situation, as in Stanley v. Commonwealth, 433
S.E.2d 512, 515 (Va. App. 1993), where the officer conducted a frisk based
on some amorphous, unidentifiable bulge in the defendant’s clothing, absent
any other circumstances which reasonably supported the conclusion that the
defendant was armed and dangerous. See also People v. Howard, 542
N.Y.S.2d 536, 539 (1989) (the mere observation of an undefinable bulge in
a person’s pocket is insufficient as a basis for a frisk or search) (citations
omitted), appeal dismissed, 549 N.E.2d 477 (1989). Agent Welsh testified
that he had concerns for his safety after he observed appellant’s nervous
demeanor and furtive behavior with the jacket. Agent Welsh observed
appellant pick the jacket up very gently and protectively with one hand
under the jacket and one hand on top. Appellant acted nervously and
evasively by turning away from Agent Welsh and holding the jacket against
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his side like a football as he was walking into the center room. That is when
Agent Welsh first saw the bulge. We believe that a reasonably prudent
officer in these circumstances would be warranted in the belief that his
safety or that of others was in danger, warranting a Terry search for his
protection.12
The suppression court did not err when it denied appellant’s omnibus
pretrial motion to suppress.13
The judgment of sentence entered on November 25, 2014, is affirmed.
12
Appellant asserts that “[w]ith respect to the ‘shape’ in Appellant’s jacket,
Agent Welsh testified, ‘I had a change of heart where, like, I’m doing
something wrong here, something is not right, I need to stop this.’”
(Appellant’s brief at 11.) Appellant intimates that Agent Welsh’s statement
that he was “doing something wrong” related to his decision to frisk
appellant. However, Agent Welsh’s statements were in reference to allowing
appellant to walk into the front room unchecked. (Suppression hearing
transcript, 7/28/14 at 33.)
13
We leave open the question whether the agents had sufficient ancillary
authority under the facts of this case to search appellant’s coat for evidence
of contraband. Unlike in Scott, Agents Walsh and Bruner smelled a strong
odor of marijuana upon entering the residence and therefore could arrest
Waters immediately. Whether they could also search the residence and
items found therein would require a separate finding of exigent
circumstances absent a supervisor’s prior approval for a residence search.
This issue is not before us nor is the question of whether the presence of
appellant within the residence would subject him to a search for any
concealment of contraband. We decide only that appellant was subject to a
protective Terry search based on the reasonable suspicion of Agent Welsh.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/22/2015
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