PAROLE AGENTS MAY CONDUCT PROTECTIVE FRISK OF NON-PAROLEE IF THEY HAVE REASONABLE SUSPICION TO DO SO
A closely-divided PA Supreme Court has decided the case of Commonwealth v. Mathis, No. 35 MAP 2016 (November 22, 2017), holding 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.
Pennsylvania Parole Agents conducted a routine home visit to the residence of parolee in a “high crime” area. They were invited into the home, where they immediately recognized the strong odor of marijuana, which increased as they continued through the home. The agents and parolee proceeded through the front room and dining room to the kitchen, where Mathis was seated in the kitchen. Agents observed marijuana cigarettes in the ashtray.
During their contact with Mathis, Agents agreed he was cooperative with all of the agents’ requests. They described the encounter as relaxed and conversational but, Mathis seemed uneasy and displayed broken eye contact and was speaking nervously, broken up. Agents also noticed Mathis pick up and carry a coat in an unusual manner and, upon observing a bulge in the coat, asked him if they could pat him down, fearing for their safety. Mathis refused and Agents seized the coat.
A local police officer reported to the residence, and Mathis admitted to ownership of the weapon and drugs. He was charged with possessory offenses of a prohibited firearm, a small amount of marijuana, and drug paraphernalia.
Mathis 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 they did not have reasonable suspicion to detain and frisk him. The trial court denied his motion to suppress and, following a stipulated bench trial, he was convicted of all charges. He appealed to the Superior Court.
The Superior Court rejected Mathis’ 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 he was armed and dangerous.
Specifically, the Superior Court concluded “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.”
The Superior Court also rejected his second claim with respect to the reasonable suspicion supporting the protective frisk. Specifically, the Superior Court noted that a reasonably prudent officer in the Agents’ circumstances would be warranted in the belief that his safety or that of others was in danger, based on Mathis’ nervous behavior and furtive handling of his coat.
Mathis appealed to the PA Supreme Court, challenging (1) the authority of parole agents to search a non-parolee and (2) whether reasonable suspicion existed to support his seizure and a subsequent frisk for weapons. He argued that the lack of express reference to non-parolees or guests of offenders in the statutes granting search powers to parole agents rendered any such conduct illegal, noting that the Court has consistently employed a strict construction in interpreting the relevant authorizing statutes and has required evidentiary suppression for any breaches. And, even if such authority existed, the Agents did not have reasonable suspicion to frisk him in this instance.
AUTHORITY OF PAROLE AGENTS TO SEARCH NON-PAROLEES
Mathis maintained that the statutes authorizing parole agents limits parole agents’ police power to offenders. He further argued that the lack of express reference to non-parolees or guests of offenders in granting search powers renders any such conduct illegal.
The Commonwealth conceded that no explicit statutory authority grants agents the power to conduct a Terry (protective) frisk of a non-offender. However, the Commonwealth contended that a protective frisk may be employed while parole agents are performing their statutory duties.
The Supreme Court noted that 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.” The Court agreed with the Commonwealth that, in order to satisfy these statutory duties, parole agents, among other things, conduct routine, unannounced home visits, as in this case, thus risking exposure to a variety of potentially dangerous unknowns.
The Supreme Court found the following reasoning from a New York state appellate decision persuasive:
“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 in the belief that his safety . . . was in danger.”
Noting that parole agents are peace officers and they are statutorily empowered to employ deadly force for self-protection or protection of another … the Supreme Court reasoned that this authority to use force includes the power to prevent violent confrontation in the first instance, i.e. – through the use of a protective frisk, if reasonable suspicion exists.
As to any infringement upon the non-parolee’s rights, the Supreme Court concluded that private citizen’s Fourth Amendment rights remain substantively unaltered pursuant to its view of parole agents’ authority to ensure their own safety, since any intrusion must be justified by reasonable suspicion, the same standard restricting intrusions by police officers.
FRISK JUSTIFIED BY REASONABLE SUSPICION
The Supreme Court reviewed and evaluated the facts of this particular issue in the light most favorable to the Commonwealth as the verdict winner. It noted that Mathis was left alone in the kitchen with clear access to an exit while the agents focused their attention on the parolee in another room. And, when an Agent spoke with him, it was in a conversational tone, and he made polite requests explained in terms of ensuring safety. 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.
The Supreme Court then evaluated when Mathis was actually detained, concluding that he was not detained until the Agent reached out and seized his jacket. Agreeing that the Agents had a reasonable suspicion Mathis posed a danger that point, the Supreme Court specifically referenced his nervous behavior and speech, and the manner in which he carefully cradled his jacket, which contained a prominent bulge approximately the size, and potential shape, of a handgun. Given these circumstances, the Supreme Court concluded that the agent was justified in investigating further in order to ensure that the object was not a firearm.
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