Commonwealth v. Brown, Appellant.
Superior Court of Pennsylvania
March 29, 1976
This rule, however, cannot be more than general; it must be subject to some exception, just as is the rule regarding warrantless searches. The exceptions to the rule regarding warrantless searches have recently been summarized by Judge HOFFMAN in his dissenting opinion in Commonwealth v. Cubler, 236 Pa. Superior Ct. 614, 621, 346 A.2d 814, 819-20 (1975). As there observed, the rationale of all of the exceptions is that certain circumstances will be recognized as sufficiently “exigent” to excuse the officer from the requirement that he get a warrant. Applying this reasoning by analogy to the present case, it seems to me that the officers who arrested appellant were not required to get a warrant. Although they did not know whether the theft was a felony or a misdemeanor, they did have reason to believe that the theft might be a felony, that the items stolen were in the van, and that if they did not make the arrest at once, the van would be driven away and the items would become unrecoverable. Together these circumstances were sufficiently exigent to excuse the general requirement of a warrant.
I therefore agree that the order of the lower court should be reversed and the case remanded for further proceedings.
Nicholas S. Kladitis, Assistant Public Defender, for appellant.
Robert F. Banks, First Assistant District Attorney, with him Joseph J. Nelson, District Attorney, for Commonwealth, appellee.
OPINION BY HOFFMAN, J., March 29, 1976:
Appellant, a parolee at the time of his arrest, contends that his arrest and the search of his home were illegal because they were effectuated without a warrant.1 The Commonwealth concedes that a parolee is entitled to some Fourth Amendment protections, but argues that he should not be entitled to the protection afforded by a warrant. Thus, we must decide the extent of a parolee‘s Fourth Amendment protection, a question of first impression in Pennsylvania.
The operative facts were set forth by the court in its opinion accompanying the order denying the motion to suppress: In November, 1974, Richard Carr, Superintendent of Manufacturing of Grafo Colloids Corporation, reported a burglary that occurred between 10:30 a.m., on November 3, and 8:00 a.m., on November 4. The proceeds of the burglary included a television set, a stereo receiver, speakers, and stereo tapes.
Appellant, a parolee, was an employee of Grafo Colloids from September 30, 1974, to January 17, 1975. Clyde Little, an agent of the Board of Probation and Parole, had been assigned to supervise the appellant. Under appellant‘s parole contract, he was subject to close supervision. Agent Little was to see appellant at least twice a month, but was empowered to visit him at home whenever the agent believed necessary.
In early January, 1975, a counselor at a local community treatment center told the parole agent that appellant had the stolen goods in his home. During his next visit, the agent saw a television set and a stereo system. After he received a specific description of the stolen items from a Grafo Colloids’ employee, the agent informed Mr. Carr that he believed that appellant had committed the burglary. Mr. Carr advised the agent that he wanted police to take action against appellant.
On January 17, 1975, the agent, Mr. Carr, and two Sharon police officers went to appellant‘s home. Apparently, the agent asked the police officers to accom-
During this century, legislatures and courts have increasingly used parole to relieve overcrowding of limited prison facilities and to effectuate prevailing theories of rehabilitation. See Comment, The Parole System, 120 U. Pa.L.Rev. 282 (1971); Note, The Parole Revocation in the Federal System, 56 Geo.L.J. 705 (1968); Note, Parole: A Critique of Its Legal Foundations and Conditions, 38 N.Y.U.L.Rev. 702, 705-707 (1963). As stated by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 478 (1972), “[t]he 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.” Because parolees are still subject to an extant term of imprisonment and are the focus of society‘s rehabilitative efforts, they are treated differently from the general population. Morrissey v. Brewer, supra.2 Most importantly, parolees “are subjected to specified conditions for the
In Pennsylvania, the Board of Parole3 is charged with the responsibility “to make general rules for the conduct and supervision of persons heretofore or hereafter placed upon parole.”
Undoubtedly, our legal system can tolerate the diminished legal status of parolees—that is, no court has held that a parolee is entitled to the full panoply of individual rights and liberties. Cf., Mempa v. Rhay, 389 U.S. 128 (1967). Recent court decisions have been unanimous, however, in holding that a parolee or probationer must be afforded due process. See, e.g., Morrissey; Gagnon v. Scarpelli, 411 U.S. 778 (1973); Commonwealth v. Davis, 234 Pa. Superior Ct. 31, 336 A.2d 616 (1975). To so hold is only the beginning of judicial inquiry. As stated in Morrissey, supra at 482, “[o]nce it is determined that due process applies, the question remains what process is due.”
The approach applied by the Supreme Court in Morrissey was the employment of a balancing test.5 On one hand, “[w]hether any procedural protections are due depends on the extent to which an individual will ‘be condemned to suffer a grievous loss.’ ” Id. The parolee
Further, we must consider a second interest of society—that is, whether administrative efficiency excuses its non-compliance with the warrant requirements of the Fourth Amendment.6 The parole agent is a necessary adjunct to the parole system. “... [T]he parole officer ordinarily does not take steps to have parole revoked unless he thinks that the violations are serious and continuing so as to indicate that the parolee is not adjusting properly and cannot be counted on to avoid antisocial activity. The broad discretion accorded the parole officer is also inherent in some of the quite vague conditions ....” Morrissey, supra at 480. Such broad discretion is viewed as an administrative necessity.
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 (1971); Camara v. Municipal Court, 387 U.S. 523 (1967). Society has an interest both for its protection and to effectuate rehabilitation in facilitating such supervision. We, therefore, agree that when performing his normal duties, a parole agent is not required to obtain a search warrant.7 We are, however, cognizant of another distinction cited in relevant case law: once a parole agent involves the police in the search and arrest of a parolee, upholding the search permits the police to circumvent the warrant requirement in what in reality is the normal function of the police. See, People v. Coffman, 2 Cal. App. 3d 681, 82 Cal. Rptr. 782 (1969); cf., People v. Thompson, supra. As stated in Coffman, supra at 688, 82 Cal. Rptr. at 786: “The parole agent‘s physical presence, even his nominal conduct of the physical acts of search, does not signalize validity. The purpose of the search, not the physical presence of a parole agent, is the vital element.” That is, once the rationale that justifies informal treatment of parolees ceases, the parolee‘s
The facts of the case underscore the infirmity of allowing the parole agent to ignore the warrant requirement. When the agent discovered the proceeds of the burglary on his initial visit to appellant‘s residence, he had ample basis to acquire a warrant. The Commonwealth cannot argue that the agent was acting to preserve evanescent evidence because the agent delayed in effectuating the arrest. He requested the assistance of the police, and thereby, relied fully on the police power to arrest. Stated differently, the parole agent ceased acting as an administrator of the parole system. He was not collecting evidence in order to have appellant‘s parole revoked. Rather, he was acting as a police officer, involving a witness who wanted to press criminal charges and other police officers. Once he “switched hats” and, in all relevant respects, became a police officer, the administrative justification that generally permitted him to avoid acquisition of a warrant was no longer applicable. Thus, the Constitution mandated that he obtain a search warrant for appellant‘s premises.
Therefore, because the lower court erred in denying appellant‘s motion to suppress, we reverse and remand for a new trial.
DISSENTING OPINION BY PRICE, J.:
This interesting case of first impression in this Commonwealth is properly developed factually and, to a large extent, legally by the Majority. I agree with the Majority that a parole agent is not required to obtain a search warrant when he is performing his normal duties. I must dissent, however, for this parole agent was well within the purview of his normal duties under the facts before us.
The performance of a parole officer‘s duties requires him to know as much about the parolee as it is humanly possible to know. The court in Latta v. Fitzharris, 521
The appellant, on the other hand, as a parolee, does have a personal privacy interest, even against his parole officer. It is in the balancing of these interests that I disagree with the majority.
Because of the parolee‘s unique position, amply demonstrated by the majority opinion, his privacy interest is subject to certain justifiable restrictions.
Such a restriction appears in this appeal. Appellant is in a different position than that of an ordinary citizen in that he is still serving a sentence, albeit parole, and is still under the control of the conditions of that sentence through the terms of his parole. The parole officer, as an agent of the Pennsylvania Board of Probation and Parole, is the person entrusted with the supervision and enforcement of these terms. In that sense the parole officer is a law enforcement officer. This is recognized in
A parole officer‘s normal duties then must include the preventing of possible further criminal conduct on the part of the parolee. To discharge these duties, some type of search must be permitted, without warrant, to determine, among other valid purposes, whether the parolee is using his home as a repository for stolen property. Therefore, one of the restrictions imposed upon a parolee is that he and his home are subject to search, without warrant, when the parole officer has any cause to suspect the parolee of being involved in further criminal conduct.
Under the facts of this case it is clear that on January 10, 1975, when the parole agent visited the appellant there was no specific knowledge on the part of the agent that the television, stereo receiver and speakers observed in the appellant‘s home were, in fact, related to the burglary involved in this conviction. At that point in time the agent was armed only with information from a counselor at a local community center that appellant had possession of some stolen goods involved in the theft. It was not until January 17, 1975, the date of the arrest, that the goods were definitely identified as those involved in the theft. When that definite link was established the arrest occurred. The majority characterizes this action as a delay. However, until this important link was established, the agent was not satisfied that his information justified an arrest of appellant. Such a decision on his part was certainly justified and well within the discre-
The majority attaches great significance also to the presence, during the search and arrest on January 17, 1975, of two Sharon police officers. The record makes clear, and the lower court specifically found, that the purpose of their presence, at the express wish of the parole agent, was to lend the agent assistance in effecting the arrest in the event assistance was needed. Fortunately such aid and assistance was not needed and the agent effected the arrest without difficulty. The agent, however, was entitled to the thought of personal safety and protection under such circumstances and the back-up of the two police officers may well have been a factor in the peaceful accomplishment of the confirmation that the goods involved were indeed the stolen goods and in effecting the arrest. There is absolutely nothing in this record, or in the conclusions of the lower court, to suggest that the parole agent was the stalking horse for the police. To the contrary, it seems clearly established that the police were present to render assistance to the agent should it have become necessary. The police were passive actors in the critical events surrounding this search and arrest. There is no evidence that the police initiated this action in any way.
Thus, I can find no justification for mandating the
It is perfectly possible that the case would arise where the action involved would be so unreasonable under the parole system as to violate the Fourth Amendment. We could not, and would not, condone a course of conduct that would establish harassment or intimidation. A course of conduct establishing such would be violative of the spirit of the parole system and would infringe upon that area of privacy to which a parolee is entitled. It is clear, therefore, that parole agents, under the guise of the responsibility of their duties, may not conduct searches of parolees’ homes whenever and as often as they feel like it. The facts here presented, however, clearly establish that the search was consistent with, and included within, the ambit of the parole agent‘s duties and responsibilities. It was certainly not oppressive or harassing. There is, therefore, no reason to impose the requirement of a warrant.
I would affirm the judgment of sentence.
JACOBS and VAN DER VOORT, JJ., join in this dissenting opinion.