COMMONWEALTH of Pennsylvania, Appellee v. Darrin Orlando MATHIS, Appellant
No. 35 MAP 2016
Supreme Court of Pennsylvania.
Argued: November 2, 2016. Decided: November 22, 2017
173 A.3d 699
Based on the foregoing, I conclude the trial court erred when it held that Appellee‘s substantive due process rights and right to be free from cruel and unusual punishment were violated. Accordingly, I would reverse the trial court‘s order in its entirety. I respectfully dissent.
Jonathan Randle White, Esq., Bradley Adam Winnick, Esq., for Appellant.
Leonard Sosnov, Esq., for Amicus Curiae Pennsylvania Association of Criminal Defense Lawyers.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
CHIEF JUSTICE SAYLOR
This discretionary appeal pertains to the authority of parole agents to detain and frisk a non-parolee visitor while performing a routine check at a parolee‘s home. We also granted review to address whether reasonable suspicion existed to justify the seizure and frisk in this instance.
By way of background, state parole agents’ authority and duties with respect to parolees are prescribed by two sections of the Prisons and Parole Code.1 Section 6152 declares agents to be peace officers and provides them with police power to arrest without warrant any parolee under
Turning to the facts,2 on December 2, 2013, Pennsylvania Parole Agents Michael Welsh and Gregory Bruner conducted a routine home visit to the residence of parolee Gary Waters. Agent Welsh characterized the neighborhood as a “high crime” area. N.T., July 28, 2015, at 4. Waters invited the agents into the home, where they immediately recognized the strong odor of marijuana, which increased as they continued through the home. The agents and Waters proceeded through the front room and dining room to the kitchen, where Appellant Darrin Orlando Mathis was seated in a chair, near the rear door of the home, in the midst of receiving a haircut from Waters. Waters, who was a barber by trade, identified the parole agents to Appellant. Agent Welsh then detained Waters in the front room, questioning him regarding the marijuana odor. Agent Welsh also noticed at this time an ashtray full of marijuana “roaches” sitting on a table in the front room. N.T., July 28, 2014, at 9. However, neither agent witnessed anyone actually smoking, nor was there any particular indication that marijuana had been smoked in the kitchen.
While Agent Welsh dealt with Waters, Agent Bruner maintained visual contact with Appellant. Appellant repeatedly got up from the chair and walked to the kitchen counter, apparently checking text messages on his charging cellphone. Agent Bruner alerted Agent Welsh that Appellant “seemed pretty nervous.” N.T., July 28, 2014, at 9. Agent Welsh returned to the kitchen briefly, stating to Appellant, “I prefer you not being on the cell phone for safety reasons. Could you please put that away.” Id. at 10.
Thereafter, according to Appellant, Agent Welsh asked him to leave, explaining that “[w]e want to finish talking to parolee. You can come back and get your haircut finished wherever [sic] you want to. ... I don‘t want to put you through [an] unnecessar[y] search[.] and all that.” Id. at 54 (alterations added). Appellant recalled that “[i]t sounded like [Agent Welsh] wanted me to hurry up and leave,”
Agent Welsh‘s recollection differed minimally, as he recalled stating to Appellant that “I want to get you out of here as soon as I possibly can. Could you do me a favor, grab your personal belongings and come to the front room.” Id. at 10. Both Agent Welsh and Appellant agreed that Appellant was cooperative with all of the agent‘s requests. Further, Agent Welsh testified that the encounter, to that point, remained relaxed and conversational, but that Appellant “appeared uneasy[, displaying b]roken eye contact [and] speaking nervously, broken up.” Id. at 28 (alterations added); see also id. at 26 (characterizing their interactions as “very light ... other than his nervous behavior, he was being cooperative“). The agent explained that he intended to identify Appellant and whether he had any outstanding warrants, so as to confirm with whom Waters was associating. See id. at 10, 23.
As Appellant collected his belongings in the kitchen, Agent Welsh noticed that he picked up his jacket by “real gently plac[ing] a hand underneath the jacket and over top of the jacket and kind of h[olding] it up to his body like it was a football [or] a baby.” Id. at 10-11. When Appellant began walking to the other room, he continued to hold the jacket to his side in a “protecting type of grip” while also turning away from the agent, which revealed a bulge in the jacket. Id. at 10-11. These observations caused Agent Welsh to have concerns regarding the agents’ safety. He then asked Appellant if he could pat him down for safety reasons, because he “intended [Appellant] not to leave the residence with [a] gun or drugs.” Id. at 31. Appellant refused, at which time Agent Welsh again noticed the bulge, described as the size of a cigarette pack or wallet, which further raised Agent Welsh‘s suspicions that Appellant may be secreting contraband or a weapon. Agent Welsh reached out to the bulge and felt what he believed was the handle of a firearm. He seized the jacket and pulled it forcefully from Appellant, throwing it to the ground. Appellant was then handcuffed and patted down. Thereafter, Agent Welsh noticed a bag of marijuana on the floor between Appellant‘s feet, while Agent Bruner recovered a handgun from the jacket.
A local police officer reported to the residence, and Appellant admitted to ownership of the weapon and drugs. A criminal history check revealed that Appellant was prohibited from possessing a firearm. The officer arrested Appellant and charged him with possessory offenses of a prohibited firearm, a small amount of marijuana, and drug paraphernalia.3
Appellant filed a pretrial motion to suppress the physical evidence and his statement to police, asserting that parole agents have no statutory authority over non-offenders and that Agent Welsh did not have reasonable suspicion to detain and frisk him. At the hearing, Appellant, Agent Welsh, and the arresting officer testified, developing the above-recited facts. The trial court denied Appellant‘s motion to suppress. See supra note 2. Following a stipulated bench trial, Appellant was convicted of all charges and sentenced to thirty-two to sixty-four months’ imprisonment. He appealed to the Superior Court.
In a published opinion, a three-judge panel of the Superior Court rejected Appellant‘s claims that the parole agents lacked authority to perform a protective frisk of a non-parolee visitor and that the agents lacked reasonable suspicion to believe Appellant was armed and dangerous.
In Scott, two probation officers conducted a routine home check of a probationer. While they were there, the probationer‘s nephew attempted to leave with a black bag that belonged to him. The probation officers ultimately opened the bag without the nephew‘s consent, discovering marijuana and scales.
The Superior Court affirmed the suppression of the evidence, holding that the probation officers possessed police power and authority only with respect to the probationer, and thus, “[t]hey had no right to interact with [the nephew] in any official capacity.” Id. at 697-98. The intermediate court continued that, even if there was authority to conduct a Terry stop,4 the probation officers had no reasonable basis for detaining the nephew. See id. at 698.
However, the appellate panel explained that the present facts were substantively different and posited that the Scott decision “left unsettled the situation where, as here, a parole officer, while performing his official duties in an offender‘s home, encounters a person, other than the parolee, whom the parole agent reasonably believes might be armed and dangerous.” Mathis, 125 A.3d at 787.
Concluding that other Pennsylvania case law provided little guidance, the appellate panel found instructive State v. Barnes, No. 15149, 1996 WL 501464 (Ohio Ct. App. Sept. 6, 1996) (unpublished), in assessing the “ancillary authority” of parole agents. Id. at *3. In that case, the Ohio Court of Appeals explained that agents, “in the context of their limited statutory authority to arrest parole violators, ... possess the concomitant authority to conduct a weapons frisk of a non-parolee” when circumstances warrant. Id. at *4. The Ohio court reasoned that “it would be anomalous to hold that parole officers may carry weapons like peace officers, place themselves in peril like peace officers, and conduct lawful arrests like peace officers, yet not protect themselves in the face of apparent danger.” Id.
The Superior Court also cited People v. Rios, 193 Cal.App.4th 584, 122 Cal.Rptr.3d 96 (2011), in which juvenile probation officers were found to have authority to detain and pat-down a visitor in the juvenile offender‘s home. The Rios court developed that, once the officers were lawfully on the premises, it was reasonable for them to determine whether the juvenile probationer‘s association with others present violated the terms of supervision. In this regard, and following a rationale similar to that employed by the Barnes court, the California Court of Appeals advanced that the agents’ statutory authority as peace officers included the right to detain and frisk, so long as it comported with Terry principles. See id. at 110. The court continued that it would be unreasonable “[t]o hold that juvenile probation officers could not detain or investigate anyone on the same premises as the juvenile probationer, no matter the circumstances or officer safety issues, unless they were accompanied by police or other law enforcement officers.” Id. The Superior Court also noted that a Louisiana appellate decision re-
Deeming these cases persuasive, particularly Barnes, the Superior Court additionally observed that courts have sanctioned a Terry frisk of non-resident visitors to insure officer safety during the execution of search warrants, see Mathis, 125 A.3d at 789 (citing Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); Commonwealth v. Eichelberger, 352 Pa.Super. 507, 508 A.2d 589 (1986); Commonwealth v. Luddy, 281 Pa.Super. 541, 422 A.2d 601 (1980)), as well as the brief detention and movement of an arrestee‘s companion, regardless of any suspicion of dangerousness, see id. (citing Commonwealth v. Graham, 454 Pa.Super. 169, 685 A.2d 132 (1996), rev‘d on other grounds, 554 Pa. 472, 721 A.2d 1075 (1998); In re N.L., 739 A.2d 564 (Pa. Super. 1999)). In light of the above, the Superior Court concluded as follows:
Within the context of their limited statutory authority over parolees, we must recognize a parole officer‘s concomitant authority to conduct a weapons frisk of a non-parolee when the facts and circumstances would warrant a reasonably prudent police officer in doing the same. Parole agents face the same extreme safety risks as police officers, and routinely encounter persons other than the parolee, who are present during an arrest and/or search of an approved residence. It is irrational to presume that a parole agent will only ever encounter his parolee during an arrest or home visit. We believe that while a parole agent is performing his official statutory duties, he is entitled to the same protections this Commonwealth has afforded to police officers with respect to his interaction with third parties, other than the parolee. Accordingly, we conclude that a parole agent‘s statutory authority to detain and arrest parolees includes the ancillary authority to conduct a weapons frisk of any person present, during an arrest or home visit, where the parole agent has a reasonable suspicion that a person searched may be armed and dangerous.
As pertains to reasonable suspicion supporting the protective frisk, the intermediate court rejected Appellant‘s claim that Agent Welsh‘s observation of the bulge alone was insufficient to justify the belief that he was secreting a weapon or contraband. The Superior Court noted that the parole agent had developed suspicions predicated on Appellant‘s nervous behavior and furtive handling of his coat. Moreover, the appellate court explained that the agent “need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [officer] in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Mathis, 125 A.3d at 791 (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883) (alteration in original). Thus, in the appellate court‘s view, the circumstances warranted a Terry search to secure the
Appellant sought this Court‘s discretionary review, which we granted, to address the following:
Whether, as a matter of first impression, the Superior Court erred in affirming the trial court‘s decision denying [Appellant‘s] motion to suppress evidence where state parole agents lacked authority and subsequently reasonable suspicion to detain [Appellant] and conduct an investigative detention in violation of Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution?
Commonwealth v. Mathis, 635 Pa. 210, 134 A.3d 51 (2016) (per curiam) (alterations added). We instructed the parties to “separately address in their briefs the subsumed and alternate claims respecting (1) the authority of parole agents, and (2) whether reasonable suspicion existed to support a seizure and a subsequent weapons frisk.” Id. The issue of parole agents’ authority presents a purely legal question, over which our standard of review is de novo and our scope of review plenary. See Commonwealth v. Eisenberg, 626 Pa. 512, 532, 98 A.3d 1268, 1279 (2014). As to whether reasonable suspicion existed, we defer to the suppression court‘s findings of fact as supported by the suppression hearing record, which we assess in the light most favorable to the Commonwealth as the prevailing party. See D‘Amato, 514 Pa. at 482, 526 A.2d at 305; Logan, 468 Pa. at 429-30, 364 A.2d at 269.6 However, we review any legal conclusions de novo. See In re L.J., 622 Pa. 126, 138 n.6, 146, 79 A.3d 1073, 1080 n.6, 1085 (2013).
Beginning with the issue of the agents’ authority, Appellant maintains that Sections 6152 and 6153 limit parole agents’ police power to offenders. He argues that the lack of express reference to non-parolees or guests of offenders in granting search powers renders any such conduct illegal. Appellant observes that parole agents may not act as “stalking horses” for the police, Commonwealth v. Pickron, 535 Pa. 241, 248, 634 A.2d 1093, 1097 (1993), and that the Fourth Amendment has been interpreted as requiring a statutory framework to direct warrantless searches of a parolee‘s residence in order to protect privacy interests. See id. at 249-50, 634 A.2d at 1098. Appellant posits that Sections 6152 and 6153 fulfill this role and, based on a plain reading, limit authority to persons subject to supervision.
Citing a number of Pennsylvania Supreme Court decisions that found various authorities improperly engaged in criminal law enforcement activities, Appellant develops that the Court has consistently employed a strict construction in interpreting the relevant authorizing statutes and has required evidentiary suppression for any breaches. See, e.g., Commonwealth v. Price, 543 Pa. 403, 672 A.2d 280 (1996) (holding that FBI agents lack authority to stop and arrest a motorist for vehicle code violations); McKinley v. PennDOT, Bureau of Driver Licensing, 576 Pa. 85, 838 A.2d 700 (2003) (refusing to permit airport police‘s extra-jurisdictional enforcement of the Implied Consent Law); Kopko v. Miller, 586 Pa. 170, 892 A.2d 766 (2006) (explaining that sheriffs do not have criminal investigative and arrest authority relative to the Wiretapping and Electronic Surveillance Control Act); Commonwealth v. Dobbins, 594 Pa. 71, 934 A.2d 1170 (2007)
Additionally, Appellant views the Scott decision as factually indistinguishable from the present circumstances and demonstrative of the limitation on parole agents’ power. He further reasons that the search of a private citizen, even under the guise of enforcing parole conditions, nonetheless results in the abridgement of a private citizen‘s rights predicated solely on an association with a parolee. Accordingly, Appellant contends that the evidence should have been suppressed.7
The Commonwealth initially responds by generally agreeing that Section 6153 delineates parole agents’ authority to search offenders. As to Section 6152, deeming agents as “peace officers,” the Commonwealth posits that the police power to effectuate arrests of parolees comes with the same dangers and threats that police officers experience, and therefore, agents have the authority to frisk individuals for weapons to ensure their safety.
Conceding that no explicit statutory authority grants agents the power to conduct a Terry frisk of a non-offender, the Commonwealth nonetheless contends that a protective frisk may be employed while parole agents are performing their statutory duties. In this respect, the Commonwealth highlights Section 6153(b)(2), which provides that “nothing in this section shall be construed to permit searches or seizures in violation of the Constitution of the United States or Section 8 of Article I of the Constitution of Pennsylvania.”
Regarding Appellant‘s reliance on Scott, the Commonwealth disputes that the case is indistinguishable from the present matter, emphasizing the differing circumstances in that matter, including that there was no parole violation, the parolee was not being detained, and there was no indication that the non-offender posed a risk to the agents. See Scott, 916 A.2d at 698 (“No evidence was presented to suggest the officers believed [the non-parolee] to be armed and dangerous, warranting a search for their protection.“). In the Commonwealth‘s view, the Scott court anticipated agents’ authority to search under a factual scenario such as the one here.
Additionally, the Commonwealth refutes the notion that permitting Terry searches would extend an agent‘s authority to investigate crimes that are plainly outside of their statutory grant. The Commonwealth distinguishes the cases that Appellant cites in this regard, observing that the FBI agents and sheriffs in those instances sought to expand their authority to encompass police investigative powers; here, the ancillary authority possessed by parole agents is not one predicated on criminal investigation. Instead, the Commonwealth continues, the agents merely seek to ensure their own safety and that of others present, in the course of the duties, which mirrors the rationale employed in Terry. See Terry, 392 U.S. at 26, 88 S.Ct. at 1882 (explaining that a Terry search is a limited intrusion “necessary for the discovery of weapons which might be used to harm the officer or others nearby“).
In terms of parole agent safety, the Commonwealth echoes the Superior Court‘s reasoning that agents face dangers similar to police officers, justifying the protections afforded by protective searches. See Barnes, No. 15149, 1996 WL 501464, at *4; see also Rios, 122 Cal.Rptr.3d 96; Jones, 78 So.3d 274. The Commonwealth develops that holding otherwise would place agents at risk like police officers, but without any mechanism to preclude violent confrontation in the face of apparent danger. Accordingly, the Commonwealth argues that parole agents’ authority should be accompanied by the ancillary power to frisk non-offenders who are present in the parolee‘s home when there is reasonable suspicion that the person is armed.
Our view of parole agents’ authority to engage in protective frisks of non-offenders encountered in the scope of their duties substantively overlaps with the safety-based rationale advanced by the Superior Court in this matter. In this respect, we initially agree that the plain language of Sections 6152 and 6153 of the Parole Code generally delineates the supervisory relationship that parole agents have with offenders, but does not otherwise reveal a legislative intent to “empower parole agents to act as police officers with respect to non-offenders or private citizens.” Mathis, 125 A.3d at 785; see also Commonwealth v. Wright, 609 Pa. 22, 48, 14 A.3d 798, 814 (2011) (citing
However, the Parole Code imposes a number of duties upon agents, including supervision of offenders in a manner that will assist in their “rehabilitation and reassimilation into the community and ... protect the public.”
Once we recognize the authority of parole officers to search parolees and their premises, ... we cannot ignore the hazards involved in this kind of public duty. A bullet‘s message is deadly no matter who the sender is. A law-enforcement officer in a potentially perilous situation must have a basic right of self-protection notwithstanding the shape of his badge. As long as an officer is properly pursuing his lawful duty, the only issue “is whether a reasonably prudent man in the circumstances would be warranted
People v. Thompson, 77 Misc.2d 700, 353 N.Y.S.2d 698, 702 (N.Y. Sup. Ct. 1974) (second alteration in original) (citation omitted) (quoting Terry, 392 U.S. at 27, 88 S.Ct. at 1883); see also Barnes, No. 15149, 1996 WL 501464, at *4; Rios, 122 Cal.Rptr.3d at 110.8
Moreover, as intimated by the Rios court, see id., interactions with non-offenders are inherent in parole enforcement activities. For example, parolees are commonly prohibited from associating with persons who have been convicted of certain offenses, which in turn may suggest that parole agents are authorized to inquire as to the identity of non-offenders present during a home visit for the purpose of ascertaining compliance with parole conditions. See, e.g., N.T., July 28, 2014, at 23 (Agent Welsh noting that the parolee in this case was prohibited from keeping the company of persons convicted of drug or weapons offenses); Commonwealth v. Brown, 240 Pa.Super. 190, 195, 361 A.2d 846, 848 (1976) (“Conditions established by the Board [of Probation and Parole] include ... the responsibility to ... avoid ‘undesirable’ companions ....“). Accordingly, although ancillary aspects of a parole agents’ duty are not expressly referenced in the legislation, they nonetheless derive directly from their statutorily imposed functions. In this way, these corollaries may be viewed as reflecting the “special needs” that warrant deviations from traditional constitutional precepts in the parole enforcement realm. Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987) (“A [s]tate‘s operation of a probation system ... presents ‘special needs’ beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.“).
As to parole agents’ designation as peace officers, in addition to their circumscribed common law arrest powers, see generally
Accordingly, innate to these common law and statutory authorizations is the power
In terms of previous decisions of this Court finding that various officials had exceeded their statutory authorization, the Commonwealth accurately notes that they are distinguishable as pertaining to limitations on officials’ criminal investigative powers. The nature of a Terry frisk is materially different in both scope and purpose from an investigative search for evidence of criminality, since a protective pat-down is “limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a ‘full’ search.” Terry, 392 U.S. at 26, 88 S.Ct. at 1882. “The purpose of a limited search after a
Thus, although strict statutory interpretation may be appropriate in assessing the boundaries of criminal investigative powers pursuant to legislative enactments, see Kopko, 586 Pa. at 193, 892 A.2d at 779 (citation omitted),10 a parole agent‘s authority to conduct a weapons frisk of non-parolees instead attends the agents’ statutory duty to effectively supervise parolees and is grounded in the powers concomitant to their peace officer designation. See
As for the Scott decision, we agree with the Superior Court‘s assessment that the case is factually distinguishable insofar as there was no basis for the probation officers to believe that the nephew posed a threat to anyone‘s safety. Accord Mathis, 125 A.3d at 786-87. In any event, Superior Court decisions are not binding on this Court. See Craley v. State Farm Fire & Cas. Co., 586 Pa. 484, 498 n.13, 895 A.2d 530, 538 n.13 (2006).
Accordingly, we conclude that parole agents have the authority to conduct a protective Terry frisk of non-parolees within the course of executing their statutorily imposed duties, so long as reasonable suspicion supports the agents’ conduct.
Turning to whether Agent Welsh possessed reasonable suspicion to justify the protective frisk in the present circumstances, Appellant notes that a Terry frisk requires the officer to identify “specific and articulable facts” that indicate criminality is afoot, Terry, 392 U.S. at 21, 88 S.Ct. at 1880, while also demonstrating a legitimate fear for officer safety, see Commonwealth v. Rodriquez, 532 Pa. 62, 73-74, 614 A.2d 1378, 1383-84 (1992) (citation omitted). He argues that the focus of the inquiry is on the actions of the defendant, rather than the surrounding circumstances or associates. See Commonwealth v. Maxon, 798 A.2d 761, 768 (Pa. Super. 2002).
As for criminal conduct, Appellant posits that, since Agent Welsh did not observe any active use of marijuana, the smell alone did not provide reasonable suspicion. Further, he emphasizes that the nervous behavior identified by Agent Welsh is not indicative of criminal activity. See Commonwealth v. Tam Thanh Nguyen, 116 A.3d 657, 668-69 (Pa. Super. 2015). Appellant forwards that his conduct, including his cooperativeness throughout the encounter, was inapposite to criminality.
Regarding agent safety concerns, Appellant explains that a person‘s potential possession of illicit drugs and nervousness have both been rejected as factors suggestive of an individual‘s dangerousness. See Commonwealth v. Grahame, 607 Pa. 389, 400-01, 7 A.3d 810, 816 (2010); Commonwealth v. Cartagena, 63 A.3d 294, 305-06 (Pa. Super. 2013) (en banc). Further, Appellant advances that a general description of a bulge will not support an inference of a perceived danger; instead, decisional law has required an officer to provide specific details. See, e.g., Commonwealth v. Carter, 105 A.3d 765, 774-75 (Pa. Super. 2014) (en banc). In this respect, he notes that Agent Welsh could not positively identify what the bulge was prior to the frisk. From Appellant‘s perspective, Agent Welsh had only minimal interaction and offered no specificity as to his belief that Appellant was armed.
The Commonwealth responds that Agent Welsh had reasonable suspicion to believe that criminality was afoot and that Appellant presented a danger to the agents’ safety based on the following facts: the residence‘s location in a high-crime area; the strong odor of marijuana throughout the home; the marijuana roaches in the ashtray; Appellant‘s nervous pacing, unease, and broken eye contact; his nervous and broken speech; the furtive manner in which Appellant picked up and carried his jacket; the bulge in the jacket; and the way in which Appellant turned away from Agent Welsh as he exited the kitchen. The Commonwealth emphasizes that these circumstances must be assessed together in-totality, as opposed to Appellant‘s individualized approach. Agent Welsh‘s seven years of experience as a state parole agent are also highlighted by the Commonwealth. Further, the Com-
Due to the incremental manner in which Agent Welsh‘s safety concerns developed and his interactions with Appellant, a preliminary assessment of the point at which Appellant was detained is necessary to determining whether reasonable suspicion justified the seizure and frisk.
In fixing the moment at which a detention has occurred, “the pivotal inquiry is whether, considering all the facts and circumstances evidencing the exercise of force, a reasonable [person] would have thought he was being restrained.” Commonwealth v. Mendenhall, 552 Pa. 484, 489, 715 A.2d 1117, 1120 (1998) (citing Commonwealth v. Jones, 474 Pa. 364, 373, 378 A.2d 835, 840 (1977)); see also United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (“[A] person has been ‘seized’ only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.“). In Commonwealth v. Strickler, 563 Pa. 47, 72-73, 757 A.2d 884, 897-98 (2000), the Court set forth a non-exhaustive list of factors deemed relevant in assessing whether a seizure has occurred: the presence of police excesses; physical contact with the suspect; police direction of the subject‘s movements; the demeanor of the officer; the location of the confrontation; the manner of expression directed to the citizen; and the content of statements or interrogatories. See id. (citations omitted). Strickler cautioned, though, that no single factor dictates the ultimate conclusion as to whether a detention occurred, see id. at 59, 757 A.2d at 890, and this Court has recognized that the line between a mere encounter, which requires no suspicion, and an investigative detention, “cannot be precisely defined ‘because of the myriad of daily situations in which police[] and citizens confront each other on the street.‘” Mendenhall, 552 Pa. at 490, 715 A.2d at 1120 (quoting Jones, 474 Pa. at 371, 378 A.2d at 839). Ultimately, it is the “nature of the confrontation” that informs the assessment of the totality of the circumstances. Commonwealth v. Lewis, 535 Pa. 501, 509, 636 A.2d 619, 623 (1994).
Pursuant to the above framework, and viewing the largely undisputed facts in the light most favorable to the Commonwealth, see D‘Amato, 514 Pa. at 482, 526 A.2d at 305, a reasonable person in Appellant‘s situation would not feel that he was restrained from leaving throughout the initial encounter. Appellant was left alone in the kitchen with clear access to an exit while the agents focused their attention on the parolee in another room. When Agent Welsh spoke with Appellant, it was in a conversational tone, and he made polite requests explained in terms of ensuring safety. See Commonwealth v. Stubblefield, 413 Pa.Super. 429, 437, 605 A.2d 799, 802 (1992) (indicating that an officer‘s inquiry addressed in a conversational tone reflects a mere encounter). Further, at no time did either agent give the impression that Appellant was suspected of any wrongdoing, despite the smell of marijuana permeating throughout the home. See Commonwealth v. Martin, 705 A.2d 887, 891 (Pa. Super. 1997) (“A statement by a law enforcement official that a person is suspected of illegal activity is persuasive evidence that the Fourth Amendment [has] been implicated.“).
Agent Welsh‘s statement that he sought to get Appellant out of the house “as soon as I possibly can” and his request that
In this regard, all interactions with law enforcement may be viewed, to some degree, as a show of authority to which people usually accede. However, the free-to-leave test is not to be employed in such a literal manner so as to require application of Fourth Amendment exclusionary remedies to all police encounters. As one commentator explains,
Implicit in the introduction of the [officer] and the initial questioning is a show of authority to which the average person encountered will feel obliged to stop and respond. Few will feel that they can walk away or refuse to answer. ... Thus, if the ultimate issue is perceived as being whether the suspect ‘would feel free to walk away,’ then virtually all police-citizen encounters must in fact be deemed to involve a Fourth Amendment seizure. The Mendenhall-[Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983)] standard should not be given such a literal reading as to produce such a result. ... Rather, the confrontation is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse.
See
Thus, and reviewing the facts favorably to the Commonwealth, Appellant was not detained until Agent Welsh reached out and seized the jacket. Turning to whether, at that time, Agent Welsh‘s actions were justified, we agree with the Commonwealth that the underlying facts establish reasonable suspicion that Appellant posed a danger to the officers.12 Most notably, Appellant displayed nervous behavior and speech, and the agent observed
Accordingly, the order of the Superior Court is affirmed.
Justices Baer, Todd and Mundy join the opinion.
Justice Dougherty files a dissenting opinion in which Justice Donohue joins.
Justice Wecht files a dissenting opinion.
JUSTICE DOUGHERTY, dissenting
I disagree the statutory authority conferred on parole agents includes the ancillary authority to detain and frisk a non-parolee private citizen present during a routine visit to a parolee‘s home, and accordingly I respectfully dissent.
Our interpretation of statutory provisions is guided by the
In this case, as the majority recognizes and even the Commonwealth concedes, there is no explicit statutory authority for parole agents to frisk a non-offender like appellant. See Majority Opinion, at 708, quoting Mathis, 125 A.3d at 785 (Parole Code “does not otherwise reveal legislative intent to ‘empower parole agents to act as police officers with respect to non-offenders or private citizens’ “). Indeed, the plain language of Sections 6152 and 6153 expressly and unambiguously limits the statutory authority of parole agents to detain and search only the “offenders” under their supervision. See
Furthermore, relevant precedent undermines the majority‘s decision to look outside the statutory framework of the Parole Code to infer ancillary authority of parole agents over private citizens. See e.g., Commonwealth v. Dobbins, 594 Pa. 71, 934 A.2d 1170 (2007); Kopko v. Miller, 586 Pa. 170, 892 A.2d 766 (2006); and Commonwealth v. Price, 543 Pa. 403, 672 A.2d 280 (1996).3 In Dobbins, for example, this Court considered whether sheriffs’ deputies have the authority under the
Similarly in Price, this Court considered whether an FBI agent was statutorily authorized to make an arrest for motor vehicle violations: failure to stop at a stop sign and driving under the influence, graded as a misdemeanor. Price, 672 A.2d at 281. The Court considered the relevant statute,
In my view, principles of statutory construction and the foregoing precedent undermine the majority‘s decision to infer ancillary authority of parole agents over private citizens in a case like this one. As such, the exclusionary rule requires suppression of the evidence obtained as a result of the agents’ unauthorized actions. See, e.g., Commonwealth v. McCandless, 538 Pa. 286, 290, 648 A.2d 309, 311 (1994) (even where probable cause exists that crime is being committed, investigating municipal police officer lacked statutory authority to detain defendant because information establishing probable cause was obtained outside officer‘s territorial jurisdiction, and therefore evidence should be suppressed).5 See also Price, 672 A.2d at 284-85 (evidence recovered as result of vehicle stop by FBI agent acting outside statutory authority must be suppressed regardless of whether stop was otherwise supported by probable cause). I would hold the evidence recovered as a result of the parole agents’ similarly unlawful actions must be suppressed.
I also respectfully dissent from the Majority‘s additional determination the parole agents here possessed reasonable suspicion to justify a protective frisk. Appellant was seized when the parole agents directed him to pick up his belongings and move to the front room—no reasonable person would have felt free to leave at that point. See Commonwealth v. Matos, 543 Pa. 449, 458, 672 A.2d 769, 774 (1996) (person is seized when totality of circumstances suggest
Police officers—or, in this case, parole agents whom we might view arguendo as imbued with the same authority—must have an individualized suspicion of specific criminal activity to justify the seizure of an individual and allow admission of evidence discovered as a result of the seizure. See, e.g., Commonwealth v. Mistler, 590 Pa. 390, 912 A.2d 1265 (2006) (suppression required where group of students were detained by police, questioned, and subjected to breathalyzer testing at fraternity party based solely on their underage status); Commonwealth v. Wood, 833 A.2d 740 (Pa. Super. 2003) (suppression required where underage bar patron was detained by police without specific observation defendant consumed, possessed, purchased, or attempted to purchase alcohol). In other words, officers must have reasonable suspicion that each individual seized was participating in criminal activity. Not only is individualized suspicion required, but this suspicion must be based on current conduct. Commonwealth v. Melendez, 544 Pa. 323, 329, 676 A.2d 226, 229 (1996) (“Terry stops, however, are designed to address immediate suspicions of current illegal conduct.“). See also id. at 229 n.6 (“The Terry situation concerns ‘necessarily swift action predicated upon the on-the-spot observations of the officer on the beat. ... ’ “), quoting Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
As in Mistler and Wood, where suppression was required after police officers detained underage students based only on their age and the general presence of alcohol in the vicinity, I would hold suppression is required here where appellant was detained based only on an ambient odor of marijuana, the presence of smoked marijuana remains, and his nervous behavior, which included checking his cell phone. At no time did the parole agents observe either appellant or their parolee Waters smoking marijuana, and there is no evidence to suggest the agents could discern whether appellant, Waters, both, or neither had smoked marijuana prior to their arrival.6 Furthermore, appellant specifically complied with all requests from the parole agents. The record does not support a finding there was an individualized suspicion appellant was involved in criminal activity at any point in time and there is even less support for a finding there was current criminal activity by appellant on which to base his initial detention. As the subsequent frisk would not have occurred but for the illegal detention, the fruits of that frisk, including the firearm, and the marijuana found later, should have been suppressed. See Commonwealth v. Her-nandez, 594 Pa. 319, 330-31, 935 A.2d 1275, 1283-84 (2007)
Justice Donohue joins this dissenting opinion.
JUSTICE WECHT, dissenting
Darrin Orlando Mathis was a private citizen. He was not a parolee or probationer over whom state parole agents had any authority pursuant to the Prisons and Parole Code (hereinafter, “Parole Code“).1 Nonetheless, during a routine visit to the home of parolee Gary Waters, two parole agents detained Mathis and frisked him. The learned Majority holds that, although parole agents have no statutory authority over third parties whom they encounter in the performance of their duties, they nonetheless possess “ancillary” authority over such private citizens. Maj. Op. at 709-10. Consequently, according to the Majority, parole agents have the authority to conduct a protective frisk of non-parolees within the course of executing their statutory duties, premised upon reasonable suspicion.
I cannot agree. There is no statutory basis, “ancillary” or otherwise, for holding that parole agents have authority over private citizens whom they encounter in the performance of their duties. But there is, or can be, a constitutional basis. Our law requires that interactions between parole agents and third parties be examined in light of the state action doctrine, as governed by Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution. As state actors, parole agents are bound by our Constitutions, irrespective of the presence or absence of statutory authority. Settled precedent imposes a reasonableness test in all such contexts.3 Under this venerable constitutional principle, I agree with the Majority that parole agents may conduct a protective frisk of non-parolees within the course of executing their statutory duties, subject to the constitutional requirements of reasonable suspicion that criminal activity is afoot and a reasonable belief that the agents might be in danger. However, I cannot agree with the Majority that the parole agents in this case possessed the requisite individualized reasonable suspicion that Mathis was engaged in criminal activity. Under the facts of record, therefore, I believe that suppression is warranted, and I must respectfully dissent.
The Parole Code establishes the statutory authority of state parole agents over parolees by defining the agents’ supervisory relationship to “offenders.”4 The Parole
For “ancillary” authority to exist, it must, a fortiori, be “ancillary” to something. See
The Parole Code is silent regarding the requirements of (or limits to) the interaction between parole agents and individuals who happen to be present when the parole agents are executing their statutory duties. We are not presently addressing a statutory violation as such. Instead, we are confronting an absence of statutory authority. Because no statute authorizes or restricts a parole agent‘s ability to act with respect to a third party, we are left with our Constitutions as the only relevant yardsticks to review the exercise of governmental authority.5
There is no dispute that the parole agents are state actors by virtue of the Parole Code. Agents Welsh and Bruner were acting within the scope of their employment and fulfilling their statutory supervisory duties when they entered Waters’ approved residence to conduct a routine home visit. Moreover, Agents Welsh and Bruner displayed their authority in a manner that imbued their actions
Because the parole agents were behaving as state actors, their interaction with Mathis was limited by the “fundamental command” of the Fourth Amendment that a search or seizure may not be unreasonable. New Jersey v. T.L.O., 469 U.S. 325, 340, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985); see also Elkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) (“[W]hat the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.“). The central inquiry under the Fourth Amendment in this case, as in all such cases, is “the reasonableness in all the circumstances of the particular governmental invasion of a citizen‘s personal security.” Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
In Terry, the United States Supreme Court held that an investigatory stop and frisk requires both reasonable suspicion that criminal activity is afoot and that the individual is armed and dangerous. Id. at 22-24, 88 S.Ct. 1868.8 Consistent with this authority, I would hold that, if parole agents acting within the scope of their employment and executing their duties pursuant to the Parole Code develop reasonable suspicion that their parolee and a third party are engaging in criminal activity, it is reasonable for Fourth Amendment purposes for those agents to intervene in order to fulfill their statutory supervisory obligations as to their offender and to maintain the status quo while the agents summon police officers. Further, in view of this limited constitutional authority to detain third parties in order to halt ongoing criminal activity, the parole agents also have the constitutional authority to frisk such persons for weapons if they have reason to believe that those persons are armed and dangerous. See Terry, 392 U.S. at 27, 88 S.Ct. 1868. As the Court held in Terry with respect to police officers, “[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the
The evidence in this case demonstrates that the parole agents seized Mathis when they directed him to gather his belongings and move into another room. Agent Welsh‘s command to Mathis to grab his belongings and relocate to another room would convey to a reasonable person that he or she was not free to leave and was, therefore, detained. See Commonwealth v. Jones, 474 Pa. 364, 378, 378 A.2d 835, 839 (1977) (holding that, in assessing whether there was a detention, the court will view all circumstances evidencing a show of authority or exercise of force to assess whether a reasonable person would have thought he or she was being restrained); Terry, 392 U.S. at 16, 88 S.Ct. 1868 (“[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.“). If, as the Majority holds, Mathis was free to leave until the moment that Agent Welsh seized Mathis’ jacket, the parole agents could simply have requested Mathis to exit the residence through the kitchen door. By commanding Mathis to relocate to another room, Agent Welsh made clear that departure was not an option.
To comport with our Constitutions, Mathis’ detention must have been premised upon reasonable suspicion that Mathis was engaging in criminal activity.9 However, it is plain from the record before us that Mathis was detained based solely upon Agent Welsh‘s generalized suspicion arising from an odor of marijuana and the presence of burnt “roaches” in the ashtray, coupled with Mathis’ nervousness in the presence of the parole agents. Agent Welsh did not testify that he observed Mathis smoking marijuana, nor did Agent Welsh establish reasonable suspicion that Mathis was engaged at that time in criminal activity. Accepting Agent Welsh‘s testimony, as the trial court apparently did, the record nonetheless fails to support any finding of individualized suspicion that Mathis was involved in criminal activity at any relevant time such that Mathis’ deten-
Accordingly, I cannot subscribe to the Majority‘s view that Agent Welsh possessed some “ancillary” statutory authority to detain and frisk Mathis. Instead, evaluating the interaction between Agent Welsh and Mathis as an interaction between a state actor bound by our Constitutions and a private individual, I am compelled to conclude that the detention was not supported by the requisite reasonable suspicion that criminal activity was afoot. Under these circumstances, suppression was warranted. I respectfully dissent.
COMMONWEALTH of Pennsylvania, Appellee v. Joseph DERHAMMER, Appellant
No. 121 MAP 2016
Supreme Court of Pennsylvania.
Argued: September 13, 2017. Decided: November 22, 2017