Scott v. Pennsylvania Bd. of Probation and Parole

• Decision Date: 03 July 1997
• Citation: 548 Pa. 418,698 A.2d 32
• Parties: Keith M. SCOTT, Appellee, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Appellant.
• Court: Pennsylvania Supreme Court

Page 32

698 A.2d 32

548 Pa. 418

Keith M. SCOTT, Appellee, v. PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Appellant.

Supreme Court of Pennsylvania.

Submitted Sept. 16, 1996.

Decided July 3, 1997.

[548 Pa. 420] Thomas W. Corbett, Jr., Gregory R. Neuhauser, John G. Knorr, Harrisburg, for PBPP.

George W. Westervelt, Jr., Stroudsburg, for Keith M. Scott.

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE and NIGRO, JJ.

OPINION

ZAPPALA, Justice.

This appeal presents the issue of whether a parolee who consents to warrantless searches as a condition of parole is entitled to invoke the protections of the Fourth Amendment in a parole revocation proceeding. For the following reasons, we affirm.

The record establishes that on April 2, 1982, Keith M. Scott, Appellee, was sentenced to a ten to twenty year term of imprisonment on his plea of nolo contendere to third degree murder. With an effective date of March 31, 1983, the Department of Corrections calculated the minimum expiration date on Appellee's sentence as March 31, 1993, and the maximum term expiration as March 31, 2003.

On September 1, 1993, Appellee was released on parole subject to enumerated conditions. Condition 5(b) provides that Appellee shall refrain from "owning or possessing any firearms or other weapons." A further provision in the "Conditions Governing Parole/Reparole" states:

I expressly consent to the search of my person, property and residence, without a warrant by agents of the Pennsylvania Board of Probation and Parole. Any items, in [sic] the possession of which constitutes a violation of parole/reparole shall be subject to seizure, and may be used as evidence in the parole revocation process.

R. 5a.

Upon his release from prison, Appellee resided at the home of his mother and stepfather, Patricia and John McDaniel. On February 4, 1994, while at a local diner with Dorothy Hahn, Appellee was arrested by three parole officers pursuant to a warrant issued by the Pennsylvania Board of Probation and Parole (Board) to commit and detain him for technical parole violations. The violations involved parole condition 5(b), with respect to possession of a .22 Magnum revolver on September 4, 1993, and the possession of a 10 millimeter Glock handgun sometime in September of 1993. The violations also concerned parole condition 5(c), which prohibits Appellee from engaging in "any assaultive behavior," and parole condition 7, which states, in part, that Appellee "must not consume alcohol under any condition for any reason." ¹

Before he was transported to the Monroe County Correctional Facility by Agent Dunham, Appellee gave his keys to Agent Mundro. Dorothy Hahn then drove Appellee's vehicle to his residence and Agents Mundro and Gallo followed. When they arrived, no one was home. Agent Mundro then handed Hahn the key and instructed her to unlock the door. Upon entering the residence, Hahn telephoned Mrs. McDaniel, Appellee's mother. The agents awaited her arrival and, when she returned home, informed her that they were going to conduct a search of Appellee's bedroom. They neither requested nor received consent. Upon request of the agents, Mrs. McDaniel hesitantly directed the agents to the room.

After finding no evidence of a parole violation in Appellee's bedroom, the agents searched the adjacent room, which was used as a sitting room for Mrs. McDaniel. The room contained two small sofas, an ironing board and a television. Agent Mundro found five firearms under one of the sofas. One of the guns was in a zippered shotgun case, while the other four guns were wrapped in a white cloth and secured by electrical tape. The guns were not loaded and no ammunition was found. Agent Mundro also recovered a compound bow and three arrows in a closet in the room. Mrs. McDaniel explained that the firearms belonged to her husband and that Appellee was unaware of their presence.

On March 30, 1994, a parole violation hearing was held before an administrative law judge (ALJ). The ALJ admitted the evidence resulting from the search of the residence over defense counsel's objection. ² Appellee argued that the agents' conduct violated his right against unreasonable searches and seizures. When asked by the ALJ to explain the legal guidelines established for him to conduct the search, Agent Mundro responded:

[A]ny individual under the supervision of the Pennsylvania Board of Probation and Parole can have his residence searched by representatives of the Board with or without the homeowner's permission if this is the parolee or probationer's approved residence. I was merely informing [Appellee's] mother that we were going to search, and I asked her to please show us where his bedroom was. We also have the right to search any common living areas in the residence.

R. 62a.

Agent Mundro was also asked whether he had been advised by someone that shotguns and rifles were in the house. He stated As speaking with [Agent] Gallo prior to making the arrest of [Appellee], he [Agent Gallo] indicated that there may be firearms in the home. I don't recall that we discussed specifically what types of firearms we might find, but we definitely did discuss the fact that there may be some in the home.

R. at 69a. Agent Mundro further stated that he did not recall the source of the information regarding the existence of the firearms. Id.

Appellee testified that he did not know the guns were in the home since his mother informed him that they had been removed. Mr. McDaniel testified that the guns belonged to him. He explained that he was aware that firearms were not permitted in Appellee's approved residence, and that he therefore removed the firearms from the gun closet and secured them under the couch in anticipation of giving them to his brother.

On June 6, 1994, the Board recommitted Appellee to serve 36 months backtime. It found that sufficient evidence supported all the violations concerning the possession of weapons and the consumption of alcohol. On September 6, 1994, the Board modified its previous decision by adding two aggravating reasons for its decision: (1) that Appellee had committed multiple violations and, (2) that he is considered a threat. Appellee sought administrative relief from the Board which was denied on November 8, 1994.

Appellee then appealed to the Commonwealth Court, contending inter alia, that the ALJ admitted evidence resulting from the search of the residence in violation of his Fourth Amendment rights. The Commonwealth Court reversed and remanded. Relying primarily on Commonwealth v. Pickron, 535 Pa. 241, 634 A.2d 1093 (1993), the court concluded that a parole agent may not conduct a warrantless search of a parolee's residence in the absence of the consent of the owner or a statutory framework that satisfies the reasonableness requirement of the Fourth Amendment. It found that the consent provision in Appellee's parole agreement did "not comport with the dictates of Pickron." Commonwealth Court Opinion, 668 A.2d 590, 597 n. 3. Applying a balancing test, the court further held that the exclusionary rule was applicable to the instant parole revocation hearing because the deterrence of unlawful police conduct substantially outweighed the injury which would result from excluding the evidence obtained from Mundro's illegal search of Appellee's residence. ³ On May 15, 1996, we granted the Commonwealth's petition for allowance of appeal.

In an en banc opinion filed on July 1, 1996, the Commonwealth Court overruled its decision in this case "to the extent that it [held] that a balancing test applies and that evidence from the warrantless search should have been excluded from the parole revocation hearing." Kyte v. Pennsylvania Board of Probation and Parole, 680 A.2d 14, 18 n. 8 (Pa.Cmwlth.1996). ⁴ The en banc panel in Kyte found that it was well-established that the exclusionary rule was inapplicable to parole revocation hearings. It quoted extensively from our decision in Commonwealth v. Kates, 452 Pa. 102, 305 A.2d 701 (1973).

As noted, we granted allocatur to determine whether Appellee is entitled to the protections of the Fourth Amendment in his parole revocation hearing when he signed a consent to search provision as a condition of his parole. ⁵ We must first determine whether Appellee, as a parolee, has any protection under the Fourth Amendment. If we conclude that he does, we next examine the effect of his signing the consent to search provision in his "Conditions of Parole/Reparole." Finally, if we conclude that his right remains and was violated, we must determine whether, pursuant to the Fourth Amendment, the exclusionary rule applies to the administrative function of parole revocation.

Our recent decision in Commonwealth v. Williams, 547 Pa. 577, 692 A.2d 1031 (1997), resolves our first two inquiries. In Williams, the defendant was paroled from prison and, as a condition of his release, signed a consent to search provision identical to the one signed by Appellee. Williams's parole agent subsequently received information from a reliable confidential informant that Williams had resumed his drug dealing activities. This information was confirmed by the local police. The parole agents then, without a warrant or the consent of the owner of the residence, searched Williams's bedroom and discovered 182.2 grams of cocaine, a pocket scale and ammunition. The parole officer contacted the local police, who seized the evidence and obtained an arrest warrant.

Criminal charges were brought and Williams filed an omnibus motion to suppress the evidence seized from his bedroom on the ground that the search violated his constitutional rights. The trial court denied suppression. The Superior Court reversed and remanded, concluding that Williams's rights under the Fourth Amendment were violated.

In analyzing the suppression issue, we recognized that although parolees and probationers have a diminished expectation of privacy, "a probationer's home like...