NOTE TO SELF: If I’m on probation, I should keep the cocaine, drug paraphernalia, knives, bullets, and guns out of my home.
The PA Superior Court has decided the case of Commonwealth v. Parker, No. 340 MDA 2016 (December 12, 2016), holding that the trial court improperly suppressed cocaine found in Parker’s bedroom after probation officers, who had already placed Parker in custody for numerous probation violations observed in his home, continued to search his residence to ensure it would be contraband-free when he returned home.
FACTS
Parker was placed on two years probation and, as part of his supervision, reviewed and signed Probation and Parole Regulations (“Regulations”), which detailed the terms and conditions of his probation including, as pertinent to this case, the fact that (1) his probation officer could visit his home at any time in order to effectively confirm compliance with the conditions of my supervision; (2) he would not possess, have control of, or have in my place of residence or vehicle, any contraband such as stolen property, non-prescribed controlled substances, drug paraphernalia, firearms (hand guns, rifles, shotguns) or other deadly weapons; (3) he would submit his person, property, place of residence, vehicle and personal effects to search at any time by his probation officer based upon reasonable suspicion that he was in possession of contraband; and (4) he would abstain from the unlawful possession, use or delivery of any non-prescribed controlled substances, including marijuana.
Probation officers made a home visit to Parker’s residence and encountered him outside. When they stepped inside the doorway to his kitchen, they immediately observed, in plain view, clear, empty, corner-cut baggies; cigar packages, which were opened and discarded on the floor; and, small rubber bands. From their training and experience, the Probation officers recognized these items as drug paraphernalia. They also saw a shotgun in an open closet in the kitchen.
Parker accompanied the probation officers to the third floor of the residence and Parker’s bedroom. There, they observed a box of nine-millimeter rounds on the floor next to the box spring/mattress. In a half-open dresser drawer, the officers also saw clear, empty baggies, U.S. currency, and a digital scale. Additionally, the probation officers observed some type of attachment to a device used to smoke marijuana, which had liquid dripping from it. The probation officers also observed several prohibited knives. At this point, the probation officers placed Parker in handcuffs.
Agent Joseph Schauren, the team leader, called his deputy director who gave the probation officers permission to search the residence based on what the probation officers had observed in plain view. Agent Schauren also called the Lancaster County Drug Task Force (“DTF”), who agreed to respond to Parker’s residence. Once there, the DTF agents were briefed by the probation officers and, ultimately, decided not to pursue a search warrant or criminal charges against Parker.
Parker was taken to a holding cell at the Probation Office for his probation violations. With prior approval from their deputy director, the remaining probation officers at Parker’s home performed the authorized search of his residence. The probation officers opened a refrigerator in Parker’s bedroom located directly next to the box spring/mattress, discovered suspected cocaine (7.4 grams), removed the substance, and conducted a field test in the kitchen; it tested positive for cocaine. At that point, Agent Schauren placed a second call to the DTF who returned to the residence, observed the cocaine and filed a criminal complaint against Parker for possession of a controlled substance with the intent to deliver (“PWID”) and possession of drug paraphernalia.
Prior to trial, Parker filed a motion to suppress, seeking suppression of all items the probation officers observed in plain view as well as the cocaine recovered from the refrigerator. Specifically, Parker argued that (1) the probation officers’ entry into his residence constituted a search lacking reasonable suspicion; (2) the probation officers’ search of the refrigerator was unlawful where the DTF agents had declined to pursue a search warrant or criminal charges; and, (3) probation officers acted as “stalking horses” for the DTF agents and exceeded the scope of their authority by searching for evidence of new crimes after they had already discovered the evidence of probation violations.
After the suppression hearing, the trial court denied Parker’s suppression motion with respect to the items the probation officers had observed in plain view and granted his motion to suppress the cocaine found in the refrigerator in his bedroom.
The Commonwealth timely filed this appeal.
ISSUE
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING PARKER’S MOTION TO SUPPRESS WHERE THE PROBATION OFFICERS HAD REASONABLE SUSPICION TO SEARCH PARKER’S RESIDENCE?
HOLDING
The trial court’s denial of suppression of the evidence observed in plain view is affirmed. And, the trial court’s suppression of the cocaine is reversed and the matter remanded for further proceedings.
REASONING
The statute governing the supervisory relationship between probation officers and probationers and the concomitant rights of the probationers, in effect at the time of the search in this case permit a property search to 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. Additionally, prior approval of a supervisor shall be obtained for a property search absent exigent circumstances.
The probation officers in this case first conducted an unannounced “home visit” of Parker’s residence, in accordance with Parker’s probation Regulations. Their observations of contraband in plain view gave them reasonable suspicion that Parker had additional contraband in the residence. The probation officers’ search, which was conducted with prior approval, was consistent with and reasonably related to Parker’s probation Regulations. Therefore, the probation officers’ search of Parker’s residence was proper under the facts of this case, and the trial court erred when it suppressed the cocaine uncovered during the valid search.
The Superior Court noted that, initially, the trial court erred when it said the probation officers’ first walk-through of Parker’s residence constituted a “search.” Here, Parker signed Regulations allowing for unannounced home visits to verify his compliance with the terms and conditions of his probation. When the probation officers entered Parker’s residence, the purpose of their presence was to verify his compliance with the Regulations.
The probation officers then took a “tour” of the home, making only a visual inspection of Parker’s residence. Nothing in the record supports Parker’s statements that the probation officers “forced” or pushed their way inside his residence without invitation or that the probation officers’ entry was akin to a “raid.” Rather, the record confirms the probation officers performed an unannounced home visit as set forth in the Regulations.
During the course of the home visit, the probation officers saw, in plain view, various items which the officers immediately recognized as drug paraphernalia as well as a shotgun in the open kitchen closet. The probation officers saw other evidence of drug paraphernalia in Parker’s bedroom, ammunition and several prohibited knives. These observations gave the probation officers reasonable suspicion to believe Parker had other contraband in the residence. The officers’ search (conducted with proper prior approval) was consistent with and reasonably related to their supervisory duties to confirm whether Parker possessed drugs or weapons in violation of the Regulations.
The Superior Court concluded that the search was not unlawful merely because it revealed incriminating evidence for use in a criminal prosecution. The fact that DTF agents originally decided to pass on pursuing a search warrant or criminal charges, based on the evidence found in plain view, does not nullify the probation officers’ reasonable suspicion to conduct a thorough search.
Lastly, the Superior Court noted that the record lacked any evidence of an express or tacit agreement between the probation officers and the DTF in this case to support Parker’s “stalking horse” claims. Under the “stalking horse” doctrine, Pennsylvania courts historically invalidated probation officers’ searches and subsequent seizures of evidence where the probation officers essentially “switched hats,” and, in all relevant respects, became police officers. A probation officer acts as a “stalking horse” if he conducts a probation search on prior request of and in concert with law enforcement officers in order to help police evade the Fourth Amendment’s usual warrant and probable cause requirements. A probation officer does not act as a stalking horse if he initiates the search in the performance of his duties as a probation officer.
Thus, although the Superior Court found that Parker’s “stalking horse” claim was not satisfied in this case, it did not expressly rule that the “stalking horse” doctrine was dead.
[Insert your own “beating a dead stalking horse” comment here: _____________ .]
CASE LINK: http://www.pacourts.us/assets/opinions/Superior/out/J-A22033-16o%20-%2010291492014670633.pdf?cb=1
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