Commonwealth v. Mathis, D., Aplt.

173 A.3d 699
Supreme Court of Pennsylvania·Decided November 22, 2017·No. 35 MAP 2016·Published·Cited by 28 cases

Opinions

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 supervision for violating parole conditions. See 61 Pa.C.S. § 6152, Section 6153 deems parole agents to be in a “supervisory relationship with their offenders,” aimed at assisting parolees in rehabilitation and reassimilation and protecting the püblic. Id. § 6153(a). This section further outlines the procedures and requirements for agents to search the person and property of offenders, see id. § 6153(b)(1), (d), and provides that such searches must comport with the protections of the United States and Pennsylvania Constitutions, see id. § -6153(b)(2). Another provision prevents the exclusion of evidence from parole or criminal proceedings based solely on a violation of the statute. See id. § 6153(c).

Turning to the facts, on December 2, 2013, Pennsylvania Parole Agents Michael Welsh and Gregory Bruner conducted a routine home visit to the residence of parolee Gary Waters.2 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 re'ar door of the home, in the midst of receiving a hair cut 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] unnecessary] 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,” and that he felt he was being “hurried along.” Id. at 54-55.

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 uneasyt, 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 ... [w]e were talking ,.. 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 placing] 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.

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Commonwealth v. Mathis, D., Aplt., 173 A.3d 699 (Pa. 2017).

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