Com. v. Rosenfelt

• Decision Date: 08 September 1995
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Joseph ROSENFELT, Appellee.
• Court: Pennsylvania Superior Court

Page 1131

662 A.2d 1131

443 Pa.Super. 616

COMMONWEALTH of Pennsylvania, Appellant, v. Joseph ROSENFELT, Appellee.

Superior Court of Pennsylvania.

Argued Jan. 26, 1995.

Filed July 11, 1995.

Reargument Denied Sept. 8, 1995.

Joan Weiner, Asst. Dist. Atty., Philadelphia, for Com., appellant.

Stuart Lev, Asst. Public Defender, Philadelphia, for appellee.

Before: WIEAND, OLSZEWSKI and HOFFMAN, JJ.

OLSZEWSKI, Judge:

The Commonwealth appeals an order, entered in the Philadelphia County Court of Common Pleas, suppressing evidence of illegal drug activity seized by Commonwealth Parole Officer Donna Henry from an automobile trunk belonging to Joseph Rosenfelt. This case asks us to answer three distinct but interrelated questions: (1) If a parole officer has probable cause, can she conduct a warrantless search of the car trunk of parolee's automobile for suspected evidence of criminal activity and/or contraband? (2) Did the parole officer have probable cause to search the car trunk? (3) Is such a search permissible under Article 1, Section 8 of the Pennsylvania Constitution?

At the time of his arrest, Rosenfelt was on parole for robbery. On November 16, 1992, he attended a regularly scheduled interview with Henry, his parole officer. Henry knew that Rosenfelt had been driving without a license, which is a parole violation. N.T. 9/20/93 at 8, 45. When Henry asked Rosenfelt if he had remedied this situation, he replied that he would take care of it the next day. Id. at 10.

Henry, suspecting that Rosenfelt had driven himself to the meeting, decided to investigate by following Rosenfelt out of the building when he left the interview. Id. at 10-11, 45. She watched as Rosenfelt entered a red Thunderbird, got behind the wheel, and drove away. Id. at 12, 45. Along with Parole Officers Barringer and Healey, Henry followed Rosenfelt in another vehicle. When Rosenfelt stopped at a red light, the parole officers jumped out of their car and took Rosenfelt into custody. Id. at 13, 45-46.

Rosenfelt was taken back to the parole office in the officers' vehicle, while Barringer drove the Thunderbird. Id. at 13, 46. While driving, Barringer noticed inside the car, in plain view, the following: a fifty-dollar bill, two four-inch spoons with white powder residue on them, a syringe, and a box of confectioner's sugar wrapped in a brown paper bag. Id. at 15, 46. Barringer reported his discovery to Henry, who then proceeded to take the car keys and open the trunk to the Thunderbird. Id. Inside were two bags containing a scale, glassine envelopes, a beeper, pills, and what appeared to Henry to be "a nice quantity of some type of illegal substance." Id. at 19; suppression court opinion 10/11/94 at 3. A test performed on the discovered illegal substance revealed it to be fifteen grams of amphetamine, with a street value of $1,050.00. Criminal complaint 11/17/92; arrest report 11/17/92.

Rosenfelt was arrested for knowingly or intentionally possessing a controlled substance, ¹ manufacture, delivery or possession with intent to manufacture or deliver a controlled substance, ² and possession of drug paraphernalia. ³ His motion to suppress the physical evidence found in the trunk of the car was granted by the Honorable John J. Chiovero. In support of his ruling, Judge Chiovero opined that the Fourth Amendment of the United States Constitution and Article 1, Section 8, of the Pennsylvania Constitution prohibited the warrantless search of Rosenfelt's vehicle, as it was based only upon reasonable suspicion, and occurred without the parolee's consent or statutory or regulatory guidelines governing such searches. N.T. 9/20/93 at 66-67; Opinion 10/11/94 at 4. Additionally, Judge Chiovero held that Henry lacked the training or expertise necessary in narcotics investigations, as well as any general police authority, that would have allowed her to search the trunk based upon probable cause. Id. at 5. The Commonwealth now appeals. ⁴

Our standard for reviewing the suppression of evidence is firmly established.

Where the Commonwealth is appealing the adverse decision of a suppression court, a reviewing court 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. Robinson, 518 Pa. 156, 159-160, 541 A.2d 1387, 1389 (1988), citing, Commonwealth v. Hamlin, 503 Pa. 210, 215-216, 469 A.2d 137, 139 (1983). If the evidence supports the court's factual findings, we are bound by such findings and may only reverse if the legal conclusions drawn therefrom are in error. Commonwealth v. Jackson, 359 Pa.Super. 433, 519 A.2d 427 (1986).

Commonwealth v. Robinson, 438 Pa.Super. 119, 123, 651 A.2d 1121, 1123 (1994) (quoting Commonwealth v. Smith, 396 Pa.Super. 6, 8, 577 A.2d 1387, 1388 (1990)).

Officer Henry testified that she was aware Rosenfelt had eleven prior drug arrests and had tested positively for methamphetamines in his blood stream during occasional urinalysis tests administered while he was on parole. N.T. 9/20/93 at 52-53. Moreover, she stated that the items found inside the car's passenger compartment "appeared to be drug paraphernalia." Id. at 46. Despite her testimony, the suppression court concluded that Henry did not have probable cause to open the trunk.

Before deciding whether Henry had probable cause to investigate the trunk, we must first decide whether or not Rosenfelt's status as a parolee meant that he had a diminished expectation of privacy. If so, Henry could have proceeded in her investigation even if she only had reasonable suspicion of illegal drug activity afoot or of contraband being present, a less demanding requirement than if probable cause to search were the applicable constitutional prerequisite. ⁵

I

The Commonwealth initially argues that Henry's authority to search Rosenfelt's car is fully supported by statute. See 61 P.S. § 331.27. ⁶ Rosenfelt responds that this case is controlled by the Pennsylvania Supreme Court's holding in Commonwealth v. Pickron, 535 Pa. 241, 634 A.2d 1093 (1993), and our subsequent analysis of Pickron in Commonwealth v. Alexander, 436 Pa.Super. 335, 647 A.2d 935 (1994). Appellee's brief at 12-14.

Pickron clearly established that section 331.27 of the statute regulating penal and correctional institutions does not give parole agents carte blanche authority when investigating parolees. In Pickron, two parole agents went to a parolee's house with an arrest warrant issued for her failure to report to the State Board of Parole. Pickron, 535 Pa. at 242-43, 634 A.2d at 1094. They were admitted into the house by parolee's mother for the limited purpose of searching for the daughter. Id. After observing some quinine, a cutting agent for heroin, the agents expanded their search to look for drugs. We held that this search was permissible, as the parole officers were properly ascertaining whether or not the parolee had been engaging in illegal drug activities. Commonwealth v. Edwards, 400 Pa.Super. 197, 206-07, 583 A.2d 445, 450 (1990). The Pennsylvania Supreme Court reversed, holding that "the [F]ourth [A]mendment prohibits the warrantless search of probationers (sic) or parolee's residences based upon reasonable suspicion without the consent of the owner or without a statutory or regulatory framework governing the search." Pickron, 535 Pa. at 249-50, 634 A.2d at 1098 (footnote omitted).

In issuing its decision, our Supreme Court specifically examined the Fourth Amendment as it applies to parolees. Id. at 243-45, 634 A.2d at 1095. The court agreed that a parolee's Fourth Amendment rights are limited. Id. They are not abrogated, however, simply by nature of the parolee's status. Alexander, 436 Pa.Super. at 338-40, 647 A.2d at 937.

The Supreme Court stated that, absent systemic procedural guidelines mandated by statute or regulation, there would be no safeguards protecting a parolee's Fourth Amendment rights. Pickron, 535 Pa. at 249-51, 634 A.2d at 1098. Subsequently, we held that Pickron would apply whether or not the parole agents acted as "stalking horses" for the police, engaging in general police investigations, or whether the parole officers were looking specifically for evidence of a parole violation. Alexander, 436 Pa.Super. at 340-42, 647 A.2d at 938. Reasonable suspicion is not enough to uphold a warrantless search of a parolee's premises.

The Commonwealth claims that Pickron does not apply because the questioned search was of Rosenfelt's car and not his home, and Henry had more than reasonable suspicion, that is, probable cause, to search the trunk. Pickron, it is argued, is only applicable where a search is conducted by a parole officer based upon his or her reasonable suspicion that criminal activity is afoot or that contraband is present. We agree.

Pickron stands for the proposition that without a prior agreement, or specific guidance from statute or regulation, a parolee's protection from an unreasonable search and seizure is no less than that afforded any other Commonwealth resident. ⁷ It does not mean, however, that Pickron would extend to parolees greater constitutional guarantees. ⁸

II

Because Pickron is inapposite where the parole officer has probable cause to search parolee's automobile, we next must decide whether Henry did indeed have probable cause to believe that the trunk of the car contained drugs and drug paraphernalia. The suppression court said that she did not. Judge Chiovero based his ruling on the fact that "the 'parole officer' did not have the expertise or general police authority" that would have enabled her to conduct a constitutionally permissible search. Suppression court opinion 10/11/94 at 5. We disagree.

Section 27 of the Probation and Parole Act, Act of August 6, 1941, P.L. 861, § 27, 61 P.S. § 331.27, states that parole officers are police officers with "police power and authority throughout the Commonwealth to arrest...