Com. v. Edwards

• Decision Date: 06 December 1990
• Citation: 400 Pa.Super. 197,583 A.2d 445
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Robert A. EDWARDS, Appellee. COMMONWEALTH of Pennsylvania, Appellant, v. Robin G. PICKRON, Appellee.
• Court: Pennsylvania Superior Court

Page 445

583 A.2d 445

400 Pa.Super. 197

COMMONWEALTH of Pennsylvania, Appellant, v. Robert A. EDWARDS, Appellee.

COMMONWEALTH of Pennsylvania, Appellant, v. Robin G. PICKRON, Appellee.

Superior Court of Pennsylvania.

Argued May 23, 1990.

Filed Dec. 6, 1990.

Kathy L. Echternach, Asst. Dist. Atty., Thorndale, for Com.

Daniel M. Preminger, Philadelphia, for appellee (at 2315).

Owen Larrabbe, Philadelphia, for appellee (at 2325).

Before WIEAND, McEWEN and HUDOCK, JJ.

WIEAND, Judge:

This is an appeal from an order of the trial court which suppressed controlled substances and other evidence seized from a parolee's apartment following a warrantless search by parole officers who were present to execute a warrant for the arrest of the parolee because of her failure to report to her parole supervisor.

On March 6, 1989, at or about 6:15 a.m., David Guglielmi and James Newton, Pennsylvania State Parole Officers, arrived at the apartment of Robin Pickron, a parolee, to execute a warrant for Pickron's arrest for failing to report to her parole officer. The parole officers were admitted by Pickron's mother, who told them her daughter was not at home. The parole officers observed that Pickron was living beyond her means and told her mother that they were required to search the apartment for Pickron. There ensued a general search of areas large enough to conceal a person. In plain view inside a closet in a small office, the agents observed a bottle of quinine. Knowing that quinine was a cutting agent for heroin, the parole agents then expanded their search, looking in all areas of the apartment for controlled substances. Newton, conducting a search of the room used as an office, found a coffee grinder containing a white, powdery residue and removed from the desk a teacup containing a small package of white powder and from beneath the desk glassine packets, vials and plastic bags. Guglielmi searched the bedroom and found two packets containing a white substance, nine packets containing a green weed, a plastic bottle of Inosital and a face filter mask. From the kitchen refrigerator he removed a plastic bag containing a white powder and from the medicine cabinet a small packet also containing a white powder. They also seized identification cards of Robert Edwards, who was Pickron's husband and also a parolee. When Pickron returned at 7:15 a.m., she was placed under arrest. Robert Edwards was subsequently arrested also. Pickron and Edwards were charged with possession of cocaine and marijuana, possession of a controlled substance with intent to deliver and criminal conspiracy. They filed a joint motion to suppress the contraband and other evidence seized from the apartment. The suppression court, following an evidentiary hearing, held that the parole officers had exceeded the authority vested in them by law and had conducted an illegal, warrantless search. Therefore, the court granted the motion to suppress. The Commonwealth has appealed. ¹

The standard of appellate review has been defined by the Supreme Court in Commonwealth v. Lagana, 517 Pa. 371, 537 A.2d 1351 (1988), as follows:

In reviewing the findings of a suppression court where the Commonwealth is appealing, we must consider only the evidence of the defendant's witnesses and so much of the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983) (plurality opinion). While we are bound by the lower court's findings of fact if supported by the record, we are not bound by the court's legal conclusions which are drawn from the facts of the case. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985).

Id. 517 Pa. at 375-376, 537 A.2d at 1353-1354.

"The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence." Morrissey v. Brewer, 408 U.S. 471, 477, 92 S.Ct. 2593, 2598, 33 L.Ed.2d 484, 492 (1972). Because parolees are still subject to an extant term of imprisonment and are the focus of society's rehabilitative efforts, they are treated differently than the general population. Id. 408 U.S. at 478, 92 S.Ct. at 2598, 33 L.Ed.2d at 492. Because parolees are subjected to specified conditions for the duration of their term, these conditions restrict their activities substantially beyond the ordinary restrictions imposed by law on private citizens. Id. See: Griffin v. Wisconsin, 483 U.S. 868, 874, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709, 718 (1987) (supervision is a "special need" of the state and permits a degree of impingement upon privacy that would not be constitutional if applied to the public at large). A parolee does not enjoy "the absolute liberty to which every citizen is entitled, but only ... conditional liberty properly dependent on observance of special parole restrictions." Morrissey v. Brewer, supra 408 U.S. at 480, 92 S.Ct. at 2600, 33 L.Ed.2d at 494. See also: United States v. Thomas, 729 F.2d 120, 123 (2d Cir.1984), cert. denied, 469 U.S. 846, 105 S.Ct. 158, 83 L.Ed.2d 95 (1984); Latta v. Fitzharris, 521 F.2d 246, 249 (9th Cir.1975) (en banc), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975) (parolee's diminished Fourth Amendment protection regarding searches by a parole officer arises from the necessity for effective parole supervision and the unique relationship of the parole officer and the parolee); Jarvis El v. Pandolfo, 701 F.Supp. 98, 101 (E.D.Pa.1988).

A parole officer is permitted to search the belongings of a parolee to ensure that they do not conceal evidence of a violation of parole. Despite having reduced expectations of privacy because of their status, however, parolees are still entitled to protection against unreasonable searches and seizures by the Fourth Amendment. See: Latta v. Fitzharris, supra at 248; Commonwealth v. Miller, 303 Pa.Super. 504, 515-516, 450 A.2d 40, 46 (1982) (Dissenting Opinion by McEwen, J.). "Society's interest in protection and rehabilitation, which is sufficient to permit a diminishment of a parolee's [F]ourth [A]mendment protection, is not so broad in scope as to permit total disregard for the panoply of a parolee's [F]ourth [A]mendment rights." Commonwealth v. Berry, 265 Pa.Super. 319, 324, 401 A.2d 1230, 1232 (1979). "What is called for once a prisoner has been released on parole is a reweighing of the balance between individual and societal interests in light of the parolee's current status in the community." People v. Burgener, 41 Cal.3d 505, 531, 224 Cal.Rptr. 112, 129, 714 P.2d 1251, 1267 (1986). A search must be reasonable and must be based upon a parole officer's reasonable belief that it is necessary to the performance of his duties. See: United States v. Duff, 831 F.2d 176, 179 (9th Cir.1987); Latta v. Fitzharris, supra at 250-252. Balancing the interests of the parolee against the societal interest in public safety leads to the conclusion "that warrantless searches of parolees are not per se unreasonable if conducted for a purpose properly related to parole supervision." People v. Burgener, supra 41 Cal.3d at 532, 224 Cal.Rptr. at 130, 714 P.2d at 1268.

However, a parole search may not be used as a "subterfuge for a criminal investigation." United States v. Richardson, 849 F.2d 439, 441 (9th Cir.1988), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 141 (1988), quoting Latta v. Fitzharris, 521 F.2d 246, 249 (9th Cir.1975). A parole officer may not act as a "stalking horse" for the police. United States v. Richardson, supra at 441, quoting United States v. Jarrad, 754 F.2d 1451, 1454 (9th Cir.1985), cert. denied, 474 U.S. 830, 106 S.Ct. 96, 88 L.Ed.2d 78 (1985). See also: Latta v. Fitzharris, supra at 247; Smith v. Rhay, 419 F.2d 160, 162-163 (9th Cir.1969); United States v. Hallman, 365 F.2d 289, 292 (3rd Cir.1966). "Whether or not a parole officer is acting as a stalking horse is a question of fact [to be] reviewed for clear error." United States v. Richardson, supra at 441. See: United States v. Jarrad, supra at 1454.

The leading case in Pennsylvania is Commonwealth v. Brown, 240 Pa.Super. 190, 361 A.2d 846 (1976). There, a manufacturing company had reported the theft of a television set, stereo receiver, speakers and tapes. Later, a counselor at a community treatment center told Brown's parole officer that the parolee had the stolen goods in his home. During his next visit to the parolee's home, the parole officer observed a television set and stereo system. After receiving a detailed description of the stolen property from the company, the parole officer informed the company that he believed Brown had committed the burglary. The parole officer, accompanied by two police officers and a representative of the manufacturing company, returned to Brown's home, where they were admitted by a woman. The stolen goods were immediately identified by the manufacturing company representative, and Brown was thereafter arrested and charged. A motion to suppress evidence was denied by the trial court. On appeal, the Superior Court reversed. It recognized that a parolee's Fourth Amendment rights were diminished, observing:

The basis for holding that a parolee has diminished Fourth Amendment rights is the necessity for an agent to have free access to supervise the parolee. Cf. Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971); Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). Society has an interest--both for its protection and to effectuate rehabilitation--to facilitate such supervision. We, therefore, agree that when performing his normal duties, a parole agent is not required to obtain a search warrant.

Id. 240 Pa.Super. at 197, 361 A.2d at 849-850 (footnote omitted). The Court concluded further, however, that the parole officer had gone beyond his role as a parole officer to collect evidence needed for a possible parole...