Com. v. Alexander

• Decision Date: 16 September 1994
• Citation: 436 Pa.Super. 335,647 A.2d 935
• Parties: COMMONWEALTH of Pennsylvania v. Harold ALEXANDER, Appellant.
• Court: Pennsylvania Superior Court

Page 935

647 A.2d 935

436 Pa.Super. 335

COMMONWEALTH of Pennsylvania v. Harold ALEXANDER, Appellant.

Superior Court of Pennsylvania.

Submitted July 5, 1994.

Filed Sept. 16, 1994.

John W. Packel, Asst. Public Defender, Philadelphia, for appellant.

Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before CAVANAUGH, DEL SOLE and BROSKY, JJ.

BROSKY, Judge.

This is an appeal from a judgment of sentence imposed upon appellant after he was convicted on drug charges. Appellant argues that the court erred in denying his suppression motion. We agree and consequently vacate the judgment of sentence and remand for a new trial.

On March 31, 1993, a task force comprised of U.S. Marshals, police officers and parole agents was detailed to apprehend fugitives or others sought in ten warrants and/or probation/parole detainers. One individual sought that day was appellant who was listed as an absconder from the Philadelphia probation/parole department. In attempting to arrest appellant, the group first went to appellant's listed address on Reinhard Street in Philadelphia and spoke with appellant's mother who indicated that appellant was not home. After searching the premises and satisfying themselves that appellant was not home, the agents left the premises. Later that day a confidential informant told the agents that appellant was living at an address on Woodland Avenue in Philadelphia. They were also told that appellant had drugs and weapons at that address. Arriving at that address, the group positioned two officers at the rear of the residence while knocking on the front door. After a few minutes without response, the officers stationed at the rear of the home radioed the officers at the front door and told them they had observed two black males peering out the window. The agents knocked again and, after a lack of response, they forced the door open.

As the agents made their way through a hallway they observed appellant coming down the stairs. Appellant was immediately arrested and handcuffed. After searching appellant's person, they apprehended the other male on the premises and searched him also. After checking by radio to see if any warrants were issued on the other male and being informed to the negative he was released. The agents next went to the bedroom area of the residence and began searching. After a thorough search of the premises the agents seized a plastic bag continuing vials filled with a white chunky substance, a bag containing two hundred vials, other drug paraphernalia and some .44 caliber shells.

Appellant was charged with possession of controlled substances and drug paraphernalia and possession with intent to deliver. A motion to suppress was filed but denied after a hearing. On September 2, 1993, appellant was convicted after a non-jury trial of possession of a controlled substance and drug paraphernalia. Post verdict motions were filed and denied. This appeal followed.

It is important to note that in making its decision the suppression court did not consider the case of Commonwealth v. Pickron, 535 Pa. 241, 634 A.2d 1093 (1993). This is notable because Pickron essentially changed, or at least modified, the standards which pertain to the warrantless search which occurred in the present case. In Pickron our Supreme Court reviewed the Fourth Amendment rights of parolees and probationers. After a dissertation of the relevant law and recent cases on the issue the Supreme Court announced its holding. They stated "[w]e hold therefore that the Fourth Amendment prohibits the warrantless search of probationers or parolee's residences based upon reasonable suspicion without the consent of the owner or without a statutory or regulatory framework governing the search." Id. 535 Pa. at 249, 634 A.2d at 1098. Although the exact standard of protections afforded parolees or probationers prior to Pickron is not easily gleaned from the relevant decisions it appears that while parolees were recognized as possessing due process rights they were not similarly accorded "the full panoply of individual rights and liberties" normally afforded other citizens. Commonwealth v. Green, 405 Pa.Super. 24, 591 A.2d 1079 (1991).

In Green two members of a panel of this court found that a parole officer's warrantless search of a parolee's room after he was arrested/detained for a violation of a condition of his parole did not violate his constitutional rights because they had a reasonable belief that narcotics were being kept there. ¹ This decision relied in part upon the United States Supreme Court's decision in Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), which upheld a similar search which was conducted pursuant to Regulations of the Wisconsin State Department of Health and Social Services. Those regulations allow a warrantless search when a probation officer has "reasonable grounds" to believe contraband was present and also has the permission of his supervisor to conduct a search. A central theme apparently running through both decisions is that a probationer or parolee's right to be free from intrusion is lessened by the fact that he or she is still under court supervision and by the fact that their freedom is, to some extent, a function of the grace of the courts, resulting either through early release from prison or through a sentence of probation instead of incarceration. However, after Pickron, it cannot be said that probationers or parolees are totally without fourth amendment rights.

Our Supreme Court, in deciding Pickron, acknowledged both the Green and Griffin decisions yet chose not to allow a warrantless search of a parolee's residence based upon reasonable suspicion without the consent of the owner or a statutory or regulatory framework governing the search. The Court explained its holding by stating "we recognize that there are no safeguards to protect the limited fourth amendment rights of probationers and parolees if their supervision is left entirely to the discretion of individual...