Commonwealth v. WilsonCommonwealth v. Wilson
Lead Opinion
OPINION
This Cоurt granted allocatur to consider whether a probation condition authorizing warrantless, suspicionless searches of a probationer’s home violates statutory and constitutional precepts. For the reasons that follow, we vacate the order of the Superior Court on statutory grounds and remand for resentencing.
This matter emanates from the Philadelphia Gun Court, a specialized court within the Court of Common Pleas. That body was instituted by the First Judicial District on January 10, 2005 as a response to the marked increase in gun violence in Philadelphia, and was established to provide prompt adjudication of gun-related offenses. All Philadelphia gun cases where the most serious charge was a violation of the Pennsylvania Uniform Firearms Act of 1995 (“VUFA”),
Testimony at appellant’s trial established that in the early morning hours of September 1, 2007, a Philadelphia police officer observеd appellant standing next to a parked automobile on the 3900 block of Mellon Street in Philadelphia. Appellant was pointing a handgun through the passenger window at the driver. The police officer ordered appellant to drop his weapon. Appellant did not comply, but instead, gun in hand, retreated to a nearby residence. The police officer repeated his demand that appellant drop his weapon. Appellant finally complied, and placed himself on the ground in compliance with the officer’s direction. The police officer, and a second officer who arrived on the scene in response to a call for back up, retrieved a loaded .38 caliber revolver. Police also recovered seven packets of marijuana and five packets of cocaine from appellant.
Appellant was tried non jury. He was represented at trial by the Defender Association of Philadelphia (“Defender Association”). At trial, in addition to evidence relative to appellant’s conduct on September 1, 2007, the Commonwealth presented the Quarter Sessions file from a previous prosecution in which appellant was convicted of another VUFA offense; this information was relevant to prove that appellant was a convicted felon prohibited from possessing a firearm.
Following the bench trial, appellant was convicted of three counts of VUFA:
On August 18, 2008, appellant was sentenced by the Honorable Susan I. Schul-man. The trial court nоted that it was sentencing appellant only on the charge of violating
The trial court emphasized that there was no stricter probation than Gun Court probation. As a condition of probation and of parole, the trial court authorized war-rantless, suspicionless searches of appellant’s residence for weapons, and prohibited him from residing in a household where anyone had a firearm. The court also explained that Gun Court probation officers had smaller caseloads and reported directly to the judge; and that any violation of the probation would result in appellant serving the balance of his sentence in jail. Id. at 63-64. Appellant did not object to the probationary condition at sentencing, nor did he file a post-sentencing motion.
Appellant filed a pro se notice of appeal; it is not clear why his court-appointed counsel did not file the notice. Appellant failed to comply with the trial court’s directive that he file a
On February 12, 2009, an attorney from the Defender Association entered an appearance in the Superior Court.
Subsequently, the trial court issued an opinion explaining the reasons for the condition. The trial court emphasized that appellant, who was only 20 years old at the time of sentencing, already had an extensive criminal history. Also, the crimes for which appellant was convicted were serious. The trial court also observed that “[h]is conduct in this case-pointing a loaded gun at a passenger in a car-showed his propensity for violent, and possibly deadly, behavior.” Tr. ct. slip op., dated 5/04/2008, at 4.
The trial court explained that the probation condition permitting warrantless, sus-picionless searches of appellant’s residence for weapons comported with the statutory authorization that a sentencing court may “impose ‘reasonable conditions’ that it deems necessary to ‘insure or assist the defendant in leading a law-abiding life.’ ” Id. (quoting
Finally, the trial court recognized that there are statutory limits on a probation officer’s authority to search a probationer or his property. Id. at 5 (citing, inter alia,
On appeal to the Superior Court, appellant argued that the warrantless, suspi-cionless searches condition was invalid. Appellant argued, inter alia, that the condition violated the Fourth Amendment of the United States Constitution and Article 1, § 8 of the Pennsylvania Constitution. He also claimed that the condition was in tension with
On October 14, 2009, a panel of the Superior Court affirmed in part and vacated in part the judgment of sentence in a brief memorandum opinion. The panel vacated that portion of the sentence which authorized warrantless, suspicionless searches as a condition of probation or parole on a state sentence.
The Commonwealth sought, and was granted, reargument. The Superior Court en banc issued a split decision which affirmed the search condition as it applied to the probationary sentence, but vacated the conditiоn as it applied to “the state parole aspect of the sentence.” Commonwealth v. Wilson,
Turning to the merits, the OISA first considered whether the warrantless, suspi-cionless search condition was valid as it related to probation. The OISA noted that in fashioning a probationary sentence, the trial court’s primary concern is to promote the probationer’s rehabilitation and restoration to a useful life. The OISA observed that the purpose of conditions placed on probation orders is to assist a probationer in leading a law-abiding life; the Sentencing Code authorizes a trial court, inter alia, to impose reasonable conditions that are reasonably related to the probationer’s rehabilitation. Id. (citing
The OISA found that permitting war-rantless, suspicionless searches was an appropriate condition that was reasonably related to appellant’s rehabilitation. It observed that the trial court was aware that probationers have great incentive to conceal any criminal activities and quickly dispose of incriminating evidence; they are also more likеly than the average citizen to violate the law. The OISA found that the condition was particularly appropriate with respect to appellant, considering the nature of his crime and the fact that he had a history of firearms offenses. Id. at 526.
The OISA also found the condition appropriate for reasons extending beyond appellant’s particular case. Id. (noting that condition was “eminently reasonable” because it was “clearly tied to [appellant’s] rehabilitation and protection of the public[;]” further noting that condition was “especially reasonable in light of the epidemic of gun violence in Philadelphia.”) Given that trial courts are confronted with the task of deterring violent crimes and ensuring the public’s protection, the OISA concluded that trial courts “must be afforded every available and lawful tool in their arsenal to effectively stem this deadly tide of viоlence plaguing too many of our cities.” Id.
The OISA next addressed appellant’s argument that
The OISA then proceeded to consider, and reject, appellant’s constitutional claims. However, given our disposition on statutory grounds, we need not discuss this aspect of the opinion.
Finally, the OISA turned to appellant’s argument that the search condition was unlawful insofar as it applied to parole. The OISA noted that the Pennsylvania Board of Probation and Parole (“Board”) is responsible for setting the terms of parole; a trial court is without authority to set parole terms. The OISA therefore vacated the parole search condition.
Then-President Judge Ford Elliott authored a concurring statement, noting that she concurred in the result reached by the lead opinion. On the probation condition issue, President Judge Ford Elliott would have denied relief solely on waiver grounds because she believed that the challenge implicates the discretionary aspects of appellant’s sentence, and not its legality. As appellant did not raise the issue before the trial court, President Judge Ford Elliott
Judge Lazarus, joined by Judges Gant-man, Donohue, and Mundy, authored an opinion in support of reversal (“OISR”).
The OISR, however, would have found that the warrantless, suspicionless search condition imposed on appellant’s probationary sentence was invalid. The OISR concluded that such a condition violated the plain language of
Appellant filed a Petition for Allowance of Appeal, which this Court granted; appellant stated the issue on appeal as:
Is not the probation condition authorizing random, suspicionless searches of [appellant’s] home illegal, as a violation of42 Pa.C.S. § 9912(d)(2) , as well as the Fourth Amendment of the U.S. Constitution and Article 1, Section 8 of the Pennsylvania Constitution?
Commonwealth v. Wilson, 26 EAL 2011 (order dated 6/07/2011). The appeal poses questions of law; thus, our scope of review is plenary and our standard of review is de novo. Commonwealth v. Weigle,
Preliminarily, we note that, when considering matters which raise both constitutional and non-constitutional bases for relief, we attempt to resolve the matter on non-constitutional grounds whenever practicable. See In re Farnese,
Appellant asserts that the warrantless, suspicionless probation search condition runs afoul of
Appellant argues that the Superior Court OISA erred when it concluded that
Additionally, appellant argues that such a broad reading runs counter to the General Assembly’s intent in adopting
The Court observed that there was no statute or regulation providing guidance by which a probation or parole officer could conduct a warrantless search. The Court reasoned that absent this statutory or regulatory guidance, or an agreement by the parolee consenting to the search, the Fourth Amendment prohibited the warrantless search of the parolee’s residence. The Court held that the Fourth Amendment does not permit the determination to conduct a search of a probationer or parolee to be left to the unfettered discretion of the individual officer. Rather, “some systemic procedural safeguards must be in place to guarantee those limited [Fjourth [Ajmendment rights.” Id. at 1098.
Appellant claims that in response to Pickron, the General Assembly enacted the search provision that is now found in
Appellant acknowledges that the general language of
The Commonwealth counters by echoing the reasoning in the OISA. It maintains that
The matter has been ably briefed, but we believe appellant clearly has the better of the arguments. The overarching principle of statutory construction is that the “intent of the Legislature is always our polestar when considering the interpretation and construction of statutes.” In re Paulmier,
the two shall be construed, if possible, so that effect may be given to both. If theconflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.
The Commonwealth would have us read
We are not persuaded by this reasoning. We think it obvious that
In short, both provisions guide and constrain a trial court in fashioning a sentencing order, and they easily coexist. It is untenable to read the provisions in a disharmonious fashion. We do not doubt that the fear of warrantless, suspicionless searches is an effective way of helping a probationer toe the line and rehabilitate himself. But, the statutory scheme, in both of the relevant iterations here, makes clear that there are other factors to consider as well.
Accordingly, we hold that, under this statutory construct, sentencing courts are not empowered to direct that a probation officer may conduct warrantless, sus-picionless searches of a probationer as a condition of probation.
Jurisdiction relinquished.
Notes
. A subsequent trial court opinion states that the Defender Association was first appointed to represent appellant on February 11, 2009. Tr. ct. slip op., dated 5/04/2008, at 1. This is not in accord with the trial court docket entries. The trial court docket reveals that the Defender Association was appointed as appellant’s counsel on June 13, 2008, prior to trial. Additionally, there is no entry on or around February 11, 2009 indicating that counsel was appointed.
.
. In rendering its decision, the Superior Court relied on its September 16, 2009 decision in Commonwealth v. Galendez, 2798 EDA 2007. The Galendez рanel decision stated that a sentencing court was not allowed to impose as a condition of parole or probation that the defendant would be subjected to war-rantless, suspicionless searches for weapons. At the time the Superior Court issued its panel decision in the matter sub judice, the Galendez panel opinion was published.
After the Superior Court panel issued its October 14, 2009 decision in the matter sub judice, the Superior Court granted reargument in Galendez. See 2798 EDA 2007 (order dated 11/25/2009). That order also directed that the September 16, 2009 decision was withdrawn.
. The Commonwealth did not cross-appeal from the holding respecting parole; thus, the question of the propriety of the search condition as a parole matter is not before this Court.
. Since President Judge Ford Elliott's concurrence provided a fifth vote for the OISA's mandate as to both the probation search issue and the parole search issues, the OISR is more accurately styled as a Concurring and Dissenting Opinion. Nevertheless, we will employ the nomenclature employed below.
.Thus, on the parole search issue, the court was unanimous as to both reviewability and the merits.
. Appellant provides no support for his claim that the General Assembly adopted the progenitor of
. We note that the Commonwealth does not renew its argument — which was rejected by all judges oh the en banc Superior Court panel — that this sentencing claim implicates the discretionary aspects of sentencing only, and is waived because appellant did not preserve it in the trial court. We offer no view on that issue.
. As we are deciding this appeal matter on the statutory claim, we will not reach the constitutional issue of whether a court may authorize random, suspicionless searches as a condition of probation. See Fiori,
. The Pickron Court also adverted to circumstances where the probationer agrees to the search condition, or where a statute authorizes the condition, but made clear that it was not saying that those circumstances, which were not befоre the Court, would survive constitutional scrutiny. We likewise offer no view on such circumstances, which are not before us.
. In his request for relief, appellant asks that if this Court were to find the probation condition invalid, we simply strike that condition from the sentence; he does not ask for a remand for resentencing. Merely striking the condition, without remanding for resentenc-ing, would be improper. The trial court sentenced appellant on only one of the three charges of which he was convicted, and it made clear that it viewed the warrantless, suspicionless search condition of probation to be an integral part of its sentencing scheme. Our finding that this condition is invalid affects the landscape of options available to the court, and may affect the court’s sentencing scheme; accordingly, the case must be remanded to the trial court. See Commonwealth v. Goldhammer,
Dissenting Opinion
DISSENTING OPINION
I respectfully dissent. The majority does not consider the constitutional issue presented, but decides the matter purely under the principles of statutory interpre
I dissent because, in the years since Pickron was decided and the statute at issue was enacted, the United States Supreme Court has made clear that probationers and parolees do not have a Fоurth Amendment right to be free from random, suspicionless searches conducted by supervising officers. Samson v. California,
The majority here does not discuss the constitutional principles set forth in Samson or Knights because it renders its decision purely on the basis of statutory interpretation, concluding that a court order requiring random suspicionless searches as a condition of probation violates the
In my respectful view, this Court should not conduct statutory interpretation in a vacuum, or ignore the сonstitutional precepts of our High Court’s Fourth Amendment jurisprudence that squarely impact the subject matter of the statute under review. The subject matter of the statutory provision at issue is the level of suspicion necessary to conduct a warrantless search of the property of a probationer or parolee. In determining the applicability of this provision, I believe that we should consider relevant, substantive constitutional precedent. I believe further that such consideration would lead to an opposite result here and to a determination that the trial court’s order expressly making Appellant subject to random searches of his residence as a condition of probation, is constitutional and, thus, legal.
Indeed, if the statute under review here mandated that Appellant agree to suspi-cionless searches as a probationary condition, I suspect that a majority of this Court would conclude, on the basis of our High Court’s controlling precedent, that the statute was constitutional. But because the mandate originated in a trial court’s sentencing order, the legality of which Appellant challenges on a statutory basis, the majority does not consider relevant Fourth Amendment jurisprudence, but engages only in statutory interpretation. The majority determines that the mandate is illegal because it violates what the majority perceives is language so restrictive as to be exclusive, to wit, that a warrantless search of a parolee or probationer only “may be conducted by an officer if there is reasonable suspicion.”
One of the assumptions underlying probation “is that the probationer is more likely than the ordinary citizen to violate the law.” Knights, supra at 120,
“The reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’” Knights, supra at 118-119,
Here, thе Superior Court’s Opinion in Support of Affirmance (“OISA”), written by Judge Jack A. Panella, sheds considerable light upon the specific facts underlying this case that impact society’s interests and concerns for public safety, recidivism, and the reintegration of offenders into productive society. See Commonwealth v. Wilson,
The OISA also considered, and rejected, Appellant’s argument that the order was illegal because it violated the statutory provision requiring reasonable suspicion to search:
A plain reading of [Section 9912(d)(2) ] discloses that it pertains to searches made by probation officers aсting on their own authority without judicial sanction. In this case, the trial court itself ordered the condition of random, warrantless searches expressly as a condition of probation. As noted above, the condition imposed by the trial court comports with the protections offered by the United States and Pennsylvania Constitutions. In no way does [Section 9912(d)(2) ] limit the authority of the trial court to impose, when appropriate, a condition of probation that the probationer be subjected to random, warrantless searches.
Id. at 527. (Original emphasis deleted, additional emphasis added).
The majority describes the above reasoning in the OISA as adopting a limited reading of the statute. See Op. at 740. I respectfully disagree. In my view, the
Nevertheless, the majority expresses that the “constitutional overlay,” i.e. the constitutional concerns raised in Pickron, are “probative of the plain meaning, intention, and reach of the statute.” Op. at 744. Our holding in Pickron was based on the reasoning that “there are no safeguards to protect the limited [Fjourth [Ajmendment rights of probationers and parolees if their supervision is left entirely to the discretion of individual parole officers.” Id. at 1098. In my view, the concerns this Court had in Pickron for the safeguarding of those very limited Fourth Amendment rights against the unsupervised and unfettered discretion of probation and parole officers do not exist in the present case. Here, as the OISA ably explained, the authority for the warrantless search is an express provision contained in the sentencing order of the court that has the ultimate supervisory authority over the offender. Moreover, under
Thus, unlike the majority, I would not reconcile any conflict between
. The statute at issue sets forth the supervisory relationship of probation and parole officers with offenders, and provides, in pertinent part, that "[a] property search may be conducted by an officer if there is reasonable suspicion to believe that the real or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision.”
. No state constitutional issues were raised in Pickron, and thus, this Court decided the issue only under Fourth Amendment jurisprudence. Moreover, although Pickron concerned the search of a parolee’s residence, its holding applied specifically to both parolees and probationers. Pickron, supra at 1098. This Court has recognized that "the constitutional rights of a parolee are indistinguishable from that of a probationer.” Commonwealth v. Williams,
. Although my discussion, supra and infra, focuses on the rights of probationers and parolees under Fourth Amendment jurisprudence, in my view, under the facts of this case, I believe there is no reason to articulate a different standard for the legality of the search under Article I, Section 8 of the Pennsylvania Constitution than under the Fourth Amendment, or to determine that the Pennsylvania Constitution affords probationers and parolees greater protection than the United States Constitution.
. In Samson, the parolee had accepted the conditions of parole. The High Court expressly declined to rest its holding "on the consent rationalе” and instead, decided the search was reasonable under its "general Fourth Amendment approach” of balancing the relevant factors. Samson, supra at 852 n. 3,
. Nevertheless, I note my agreement with the majority’s determination that striking the random search condition from the sentencing order must result in a remand for resentenc-ing to permit the court to fashion an appropriate sentence for Appellant’s multiple weapon and drug convictions. See Op. at 745 n. 11.