Commonwealth v. Green

591 A.2d 1079, 405 Pa. Super. 24, 1991 Pa. Super. LEXIS 1494
CourtSuperior Court of Pennsylvania
DecidedMay 29, 1991
Docket3042
StatusPublished
Cited by7 cases

This text of 591 A.2d 1079 (Commonwealth v. Green) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Green, 591 A.2d 1079, 405 Pa. Super. 24, 1991 Pa. Super. LEXIS 1494 (Pa. Ct. App. 1991).

Opinions

POPOVICH, Judge.

This case involves an appeal by the Commonwealth from the order of the Court of Common Pleas of Philadelphia County granting the Defendant/Appellee’s (Michael Green’s) motion to suppress.1 We reverse.

The standard of review in such a case has been articulated most recently by a panel of this Court in Commonwealth v. Jenkins, 401 Pa.Super. 580, 585 A.2d 1078 (1991); to-wit:

In reviewing a suppression court’s order suppressing evidence, we, as an appellate court, must consider only the evidence of the defendant’s witnesses, and only so much of the evidence presented by the prosecution as remains uncontradicted by the record as a whole. When the evidence supports the factual findings of the suppression court, we may reverse only if there is an error of law.

Id. 401 Pa.Superior Ct. at 581, 585 A.2d at 1079 (Citations omitted). Instantly, the Defendant/Appellee presented no witnesses. Accordingly, the Commonwealth’s factual account remains uncontradicted in the record. With the preceding in mind, we proceed to itemize the facts needed to assess the propriety of the suppression court’s ruling.

On December 19, 1988, Pennsylvania State Parole Officer James R. Hines was assigned to supervise the Defendant, a parolee as of March 15,1988, while he received treatment at the intensive drug unit in West Philadelphia. The Defendant had secured a job driving a school bus and was earning from $150 to $200 a week.

[26]*26Six or seven weeks prior to February 22, 1989, Parole Officer Hines received an anonymous phone call indicating that the Defendant might have been involved in drug trafficking. After receipt of this information, Parole Officer Hines spoke with his supervisor and other fellow parole officers. It was concluded that a surveillance of the Defendant was warranted. In the course thereof, it was discovered that the Defendant was. driving a Cadillac and making efforts to conceal this from the parole office. For instance, the Defendant would park the Cadillac one to two blocks from the parole office where he would visit at least twice a week, even though there was parking available at the office site. Also, it was noticed that the Defendant was in possession of what appeared to be expensive jewelry, items which were beyond his visible means to afford.

On February 21, 1989, at 10:25 p.m., Parole Officer Hines arrived at the Defendant’s residence and was told by his mother that her son was not there. Under the terms of the Defendant’s parole, he was required to be home between the hours of 8:00 p.m. and 6:00 a.m. As a matter of procedure, Hines had to inspect the Defendant’s room to verify his unauthorized absence, a clear violation of condition # 7 of his parole and a ground upon which to terminate the program. Defendant’s mother was advised of the parole officer’s need to see Green upon his return.

On February 22, 1989, at approximately 11:30 a.m., the Defendant came into the parole office voluntarily. With his arrival, the Defendant was arrested, handcuffed and shackled before being transported a distance of some ten blocks to his home for a search of his room.

The search was prompted by the Defendant’s violation of his curfew the preceding evening and Parole Officer Hines’ notification by letter dated February 6, 1989, that the Defendant had been terminated from the West Philadelphia drug treatment program, either of which constituted a basis to revoke parole.

Parole Officer Hines and three other agents from the office conducted a search of the Defendant’s room and [27]*27found: (1) a .32 caliber revolver with 12 rounds in a jacket; (2) 29 grams of what was believed to be a controlled substance (cocaine); and (3) a suitcase with drug paraphernalia, ie., an Ohaas 3 beam balance scale, large jars identified as Manatol, a large jar marked Quinine, some items with residue, and 4-5 hundred unused packets.

Thereafter, the Defendant was given a copy of Form 340 specifying the reasons for the detainer of February 22, 1989, which included the charges lodged against him arising out of the search.

The confiscated drugs were turned over to the Philadelphia Police Department for testing and resulted in the filing of charges, ie., possession of drug paraphernalia, possession of a controlled substance, and possession with intent to deliver a controlled substance. However, the seized .32 caliber revolver, albeit given to the police by the parole officer, did not lead to the filing of any offense.

A motion to suppress was filed, testimony was received and arguments from counsel were heard. By order dated October 26, 1989, the suppression court concluded as a matter of law that the parolee’s Fourth Amendment rights were violated and granted his motion to suppress the physical evidence. It did so in the belief that the parole officer did not have “reasonable grounds” to engage in a warrant-less search, had “switched hats” (from the role of a parole officer to that of a police officer) when surveillance of the Defendant for drug trafficking was authorized and in conducting a second search of his room for contraband.

The suppression court concluded that the parole officer was looking for evidence of “new criminal charges” in searching the parolee’s room following his arrest, and, as such, was required to satisfy the probable cause standard to validate the warrantless search. The Commonwealth disagreed and appealed.

The Commonwealth assails the October 26th order on dual grounds which, when distilled, are reduced to the claim that the parole officer had “reasonable grounds” to conduct [28]*28the search of the parolee’s room following his arrest for violating parole.

We observe that 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, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); Latta v. Fitzharris, 521 F.2d 246, 248 (9th Cir.1975), cert. denied, 423 U.S. 897, 96 S.Ct. 200, 46 L.Ed.2d 130 (1975); White, The Fourth Amendment Rights of Parolees and Probationers, 21 U.Pitts.L.Rev. 167, 172-76 (1969). However, the United States Supreme Court has acknowledged that the requirements of due process in general apply to a parolee; viz.:

... the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty and its termination inflicts a “grievous loss” on the parolee____ [T]he liberty is valuable and must be seen as within the protection of the Fourth Amendment.

Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972). Thus, the “minimum” requirements of due process were held by the Morrissey Court to require the implementation of a two-step process prior to the revocation of one’s parole.

In Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), the high Court was asked to decide whether a warrantless search of a probationer’s home by a probation officer violated the Fourth Amendment.

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647 A.2d 935 (Superior Court of Pennsylvania, 1994)
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967 F.2d 902 (Third Circuit, 1992)
Commonwealth v. Green
591 A.2d 1079 (Superior Court of Pennsylvania, 1991)

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Bluebook (online)
591 A.2d 1079, 405 Pa. Super. 24, 1991 Pa. Super. LEXIS 1494, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-green-pasuperct-1991.