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In Mathis, the Court did not suppress evidence obtained pursuant to a Terry frisk of a non-offender by a parole agent during the course of his supervisory duties with regard to a parolee despite the lack of express authority to do so.
Summary of this case from Commonwealth v. HlubinOpinion
No. 35 MAP 2016
11-22-2017
COMMONWEALTH of Pennsylvania, Appellee v. Darrin Orlando MATHIS, Appellant
Katie Lynee Adam, Esq., Dauphin County District Attorney's Office, Stefanie Marie Flick, Esq., Edward Michael Marsico Jr., Esq., for Appellee. Jonathan Randle White, Esq., Bradley Adam Winnick, Esq., for Appellant. Leonard Sosnov, Esq., for Amicus Curiae Pennsylvania Association of Criminal Defense Lawyers.
Katie Lynee Adam, Esq., Dauphin County District Attorney's Office, Stefanie Marie Flick, Esq., Edward Michael Marsico Jr., Esq., for Appellee.
Jonathan Randle White, Esq., Bradley Adam Winnick, Esq., for Appellant.
Leonard Sosnov, Esq., for Amicus Curiae Pennsylvania Association of Criminal Defense Lawyers.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
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. 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 public. 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).
Act of Aug. 11, 2009, P.L. 147, No. 33, § 7 (as amended 61 Pa.C.S. §§ 6151 –53) (the "Parole Code"). As used in the statute, "offender" denotes "[a]ny person subject to the parole or probationary supervision of the board." 61 Pa.C.S. § 6151.
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. 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 rear 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.
These facts derive from Appellant's and Agent Welsh's testimony at a hearing on Appellant's motion to suppress evidence. Ordinarily, when a defendant challenges an adverse ruling of a suppression court, as is the case here, a reviewing court is bound by the suppression court's factual findings that are supported by the record, considering only the evidence of the prosecution and so much of the defense's evidence that remains uncontradicted. See Commonwealth v. D'Amato , 514 Pa. 471, 482, 526 A.2d 300, 305 (1987) (citation omitted). In this instance, however, the suppression court did not enter findings of facts, nor did it file a Rule 1925(a) opinion upon appeal to the Superior Court, due to a health emergency. See Commonwealth v. Mathis , 125 A.3d 780, 783 n.5 (Pa. Super. 2015). Nevertheless, as the Commonwealth was the prevailing party before the suppression court, we view the evidence in its favor. See Commonwealth v. Logan , 468 Pa. 424, 429–30, 364 A.2d 266, 269 (1976). Furthermore, Agent Welsh's and Appellant's depictions of the events substantially align, with only minor discrepancies that will be resolved by reference to the above precepts.
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] unnecessar[y] 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 uneasy[, 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 plac[ing] 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.
See 18 Pa.C.S. § 6105(a)(1) ; 35 P.S. §§ 780–113(a)(31), (32).
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.
In a published opinion, a three-judge panel of the Superior Court rejected Appellant's 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 Appellant was armed and dangerous. See Commonwealth v. Mathis , 125 A.3d 780, 791–92 (Pa. Super. 2015). Initially, the intermediate court acknowledged that, since Sections 6152 and 6153 of the Parole Code only address agents' authority with respect to offenders, parole agents are generally not empowered to act as police officers relative to non-offenders. In this respect, the court found pertinent the decision in Commonwealth v. Scott , 916 A.2d 695 (Pa. Super.), appeal denied , 594 Pa. 713, 937 A.2d 445 (2007) (table).
In Scott , two probation officers conducted a routine home check of a probationer. While they were there, the probationer's nephew attempted to leave with a black bag that belonged to him. The probation officers ultimately opened the bag without the nephew's consent, discovering marijuana and scales.
The Superior Court affirmed the suppression of the evidence, holding that the probation officers possessed police power and authority only with respect to the probationer, and thus, "[t]hey had no right to interact with [the nephew] in any official capacity." Id. at 697–98. The intermediate court continued that, even if there was authority to conduct a Terry stop, the probation officers had no reasonable basis for detaining the nephew. See id. at 698.
See Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
However, the appellate panel explained that the present facts were substantively different and posited that the Scott decision "left unsettled the situation where, as here, a parole officer, while performing his official duties in an offender's home, encounters a person, other than the parolee, whom the parole agent reasonably believes might be armed and dangerous." Mathis , 125 A.3d at 787.
Concluding that other Pennsylvania case law provided little guidance, the appellate panel found instructive State v. Barnes , No. 15149, 1996 WL 501464 (Ohio Ct. App. Sept. 6, 1996) (unpublished), in assessing the "ancillary authority" of parole agents. Id. at *3. In that case, the Ohio Court of Appeals explained that agents, "in the context of their limited statutory authority to arrest parole violators, ... possess the concomitant authority to conduct a weapons frisk of a non-parolee" when circumstances warrant. Id. at *4. The Ohio court reasoned that "it would be anomalous to hold that parole officers may carry weapons like peace officers, place themselves in peril like peace officers, and conduct lawful arrests like peace officers, yet not protect themselves in the face of apparent danger." Id.
The Superior Court also cited People v. Rios , 193 Cal.App.4th 584, 122 Cal.Rptr.3d 96 (2011), in which juvenile probation officers were found to have authority to detain and pat-down a visitor in the juvenile offender's home. The Rios court developed that, once the officers were lawfully on the premises, it was reasonable for them to determine whether the juvenile probationer's association with others present violated the terms of supervision. In this regard, and following a rationale similar to that employed by the Barnes court, the California Court of Appeals advanced that the agents' statutory authority as peace officers included the right to detain and frisk, so long as it comported with Terry principles. See id. at 110. The court continued that it would be unreasonable "[t]o hold ... that juvenile probation officers could not detain or investigate anyone on the same premises as the juvenile probationer, no matter the circumstances or officer safety issues, unless they were accompanied by police or other law enforcement officers." Id. The Superior Court also noted that a Louisiana appellate decision reflected analogous reasoning. See State v. Jones , 78 So.3d 274, 282 (La. Ct. App. 2011) ("Louisiana law recognizes that law enforcement officers should not be required to take unnecessary risks [in] performing their duties.").
Although not discussed by the Superior Court, pursuant to Louisiana law, "[p]robation officers [are] deemed to be peace officers and shall have the same powers with respect to criminal matters and the enforcement of the law relating thereto as sheriffs, constables, and police officers have in their respective jurisdictions." La. Code Crim. Proc. Ann. art. 899 ; see also La. Stat. Ann. § 15:574.8 (applying an identical provision to parole officers).
Deeming these cases persuasive, particularly Barnes , the Superior Court additionally observed that courts have sanctioned a Terry frisk of non-resident visitors to insure officer safety during the execution of search warrants, see Mathis , 125 A.3d at 789 (citing Ybarra v. Illinois , 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) ; Commonwealth v. Eichelberger , 352 Pa.Super. 507, 508 A.2d 589 (1986) ; Commonwealth v. Luddy , 281 Pa.Super. 541, 422 A.2d 601 (1980) ), as well as the brief detention and movement of an arrestee's companion, regardless of any suspicion of dangerousness, see id. (citing Commonwealth v. Graham , 454 Pa.Super. 169, 685 A.2d 132 (1996), rev'd on other grounds , 554 Pa. 472, 721 A.2d 1075 (1998) ; In re N.L. , 739 A.2d 564 (Pa. Super. 1999) ). In light of the above, the Superior Court concluded as follows:
Within the context of their limited statutory authority over parolees, 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.
Id. at 789–90.
As pertains to reasonable suspicion supporting the protective frisk, the intermediate court rejected Appellant's claim that Agent Welsh's observation of the bulge alone was insufficient to justify the belief that he was secreting a weapon or contraband. The Superior Court noted that the parole agent had developed suspicions predicated on Appellant's nervous behavior and furtive handling of his coat. Moreover, the appellate court explained that the agent "need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [officer] in the circumstances would be warranted in the belief that his safety or that of others was in danger." Mathis , 125 A.3d at 791 (quoting Terry , 392 U.S. at 27, 88 S.Ct. at 1883 ) (alteration in original). Thus, in the appellate court's view, the circumstances warranted a Terry search to secure the agents' safety. Accordingly, the court affirmed Appellant's judgment of sentence.
Appellant sought this Court's discretionary review, which we granted, to address the following:
Whether, as a matter of first impression, the Superior Court erred in affirming the trial court's decision denying [Appellant's] motion to suppress evidence where state parole agents lacked authority and subsequently reasonable suspicion to detain [Appellant] and conduct an investigative detention in violation of Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution?
Commonwealth v. Mathis , 635 Pa. 210, 134 A.3d 51 (2016) (per curiam ) (alterations added). We instructed the parties to "separately address in their briefs the subsumed and alternate claims respecting (1) the authority of parole agents, and (2) whether reasonable suspicion existed to support a seizure and a subsequent weapons frisk." Id. The issue of parole agents' authority presents a purely legal question, over which our standard of review is de novo and our scope of review plenary. See Commonwealth v. Eisenberg , 626 Pa. 512, 532, 98 A.3d 1268, 1279 (2014). As to whether reasonable suspicion existed, we defer to the suppression court's findings of fact as supported by the suppression hearing record, which we assess in the light most favorable to the Commonwealth as the prevailing party. See D'Amato , 514 Pa. at 482, 526 A.2d at 305 ; Logan , 468 Pa. at 429–30, 364 A.2d at 269. However, we review any legal conclusions de novo. See In re L.J. , 622 Pa. 126, 138 n.6, 146, 79 A.3d 1073, 1080 n.6, 1085 (2013).
As noted, the suppression court's lack of factual findings does not impede review of this matter. See supra note 2.
Beginning with the issue of the agents' authority, Appellant maintains that Sections 6152 and 6153 limit parole agents' police power to offenders. He argues that the lack of express reference to non-parolees or guests of offenders in granting search powers renders any such conduct illegal. Appellant observes that parole agents may not act as "stalking horses" for the police, Commonwealth v. Pickron , 535 Pa. 241, 248, 634 A.2d 1093, 1097 (1993), and that the Fourth Amendment has been interpreted as requiring a statutory framework to direct warrantless searches of a parolee's residence in order to protect privacy interests. See id. at 249–50, 634 A.2d at 1098. Appellant posits that Sections 6152 and 6153 fulfill this role and, based on a plain reading, limit authority to persons subject to supervision.
Citing a number of Pennsylvania Supreme Court decisions that found various authorities improperly engaged in criminal law enforcement activities, Appellant develops that the Court has consistently employed a strict construction in interpreting the relevant authorizing statutes and has required evidentiary suppression for any breaches. See, e.g. , Commonwealth v. Price , 543 Pa. 403, 672 A.2d 280 (1996) (holding that FBI agents lack authority to stop and arrest a motorist for vehicle code violations); McKinley v. PennDOT, Bureau of Driver Licensing , 576 Pa. 85, 838 A.2d 700 (2003) (refusing to permit airport police's extra-jurisdictional enforcement of the Implied Consent Law); Kopko v. Miller , 586 Pa. 170, 892 A.2d 766 (2006) (explaining that sheriffs do not have criminal investigative and arrest authority relative to the Wiretapping and Electronic Surveillance Control Act); Commonwealth v. Dobbins , 594 Pa. 71, 934 A.2d 1170 (2007)(rejecting the sheriff's claim of authority to conduct independent investigations pursuant to The Controlled Substance, Drug, Device and Cosmetic Act); Commonwealth v. Marconi , 619 Pa. 401, 64 A.3d 1036 (2013) (holding that sheriffs lack authority to independently establish and conduct suspicionless roadside sobriety checkpoints); see also Kopko , 586 Pa. at 193, 892 A.2d at 779 ("It is well settled that when vesting a group with police powers and duties, the Legislature does so with specificity." (quoting Commonwealth v. Dietterick , 429 Pa.Super. 180, 185–86, 631 A.2d 1347, 1350 (1993) ) (alterations omitted)).
Additionally, Appellant views the Scott decision as factually indistinguishable from the present circumstances and demonstrative of the limitation on parole agents' power. He further reasons that the search of a private citizen, even under the guise of enforcing parole conditions, nonetheless results in the abridgement of a private citizen's rights predicated solely on an association with a parolee. Accordingly, Appellant contends that the evidence should have been suppressed.
The Pennsylvania Association of Criminal Defense Lawyers filed an amicus curiae brief supporting Appellant, in which it generally reiterates Appellant's arguments that there is no statutory authority for agents to conduct protective frisks of non-parolees, that the decisional law of this Court requires suppression when authorities exceed their statutory authorization, and that reasonable suspicion did not support the detention and frisk.
The Commonwealth initially responds by generally agreeing that Section 6153 delineates parole agents' authority to search offenders. As to Section 6152, deeming agents as "peace officers," the Commonwealth posits that the police power to effectuate arrests of parolees comes with the same dangers and threats that police officers experience, and therefore, agents have the authority to frisk individuals for weapons to ensure their safety.
Conceding that no explicit statutory authority grants agents the power to conduct a Terry frisk of a non-offender, the Commonwealth nonetheless contends that a protective frisk may be employed while parole agents are performing their statutory duties. In this respect, the Commonwealth highlights Section 6153(b)(2), which provides that "nothing in this section shall be construed to permit searches or seizures in violation of the Constitution of the United States or Section 8 of Article I of the Constitution of Pennsylvania." 61 Pa.C.S. § 6153(b)(2). From this the Commonwealth reasons that, since Terry frisks are not statutorily prohibited, they are presumptively permitted, so long as they do not violate constitutional norms. Along this same line, the Commonwealth observes that Section 6153 prescribes that "no violation of this section shall constitute an independent ground for suppression of evidence in any ... criminal proceeding." Id. § 6153(c). Thus, from the Commonwealth's perspective, these provisions leave open the ancillary authority to perform protective searches.
Regarding Appellant's reliance on Scott , the Commonwealth disputes that the case is indistinguishable from the present matter, emphasizing the differing circumstances in that matter, including that there was no parole violation, the parolee was not being detained, and there was no indication that the non-offender posed a risk to the agents. See Scott , 916 A.2d at 698 ("No evidence was presented to suggest the officers believed [the non-parolee] to be armed and dangerous, warranting a search for their protection."). In the Commonwealth's view, the Scott court anticipated agents' authority to search under a factual scenario such as the one here.Additionally, the Commonwealth refutes the notion that permitting Terry searches would extend an agent's authority to investigate crimes that are plainly outside of their statutory grant. The Commonwealth distinguishes the cases that Appellant cites in this regard, observing that the FBI agents and sheriffs in those instances sought to expand their authority to encompass police investigative powers; here, the ancillary authority possessed by parole agents is not one predicated on criminal investigation. Instead, the Commonwealth continues, the agents merely seek to ensure their own safety and that of others present, in the course of the duties, which mirrors the rationale employed in Terry . See Terry , 392 U.S. at 26, 88 S.Ct. at 1882 (explaining that a Terry search is a limited intrusion "necessary for the discovery of weapons which might be used to harm the officer or others nearby").
In terms of parole agent safety, the Commonwealth echoes the Superior Court's reasoning that agents face dangers similar to police officers, justifying the protections afforded by protective searches. See Barnes , No. 15149, 1996 WL 501464, at *4 ; see also Rios , 122 Cal.Rptr.3d 96 ; Jones , 78 So.3d 274. The Commonwealth develops that holding otherwise would place agents at risk like police officers, but without any mechanism to preclude violent confrontation in the face of apparent danger. Accordingly, the Commonwealth argues that parole agents' authority should be accompanied by the ancillary power to frisk non-offenders who are present in the parolee's home when there is reasonable suspicion that the person is armed.
Our view of parole agents' authority to engage in protective frisks of non-offenders encountered in the scope of their duties substantively overlaps with the safety-based rationale advanced by the Superior Court in this matter. In this respect, we initially agree that the plain language of Sections 6152 and 6153 of the Parole Code generally delineates the supervisory relationship that parole agents have with offenders, but does not otherwise reveal a legislative intent to "empower parole agents to act as police officers with respect to non-offenders or private citizens." Mathis , 125 A.3d at 785 ; see also Commonwealth v. Wright , 609 Pa. 22, 48, 14 A.3d 798, 814 (2011) (citing 1 Pa.C.S. § 1921(a) ("The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.")).
However, 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." 61 Pa.C.S. § 6153(a). As the Commonwealth observes, 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. In this respect, we find persuasive, as did the Superior Court, the perspective developed by other jurisdictions.
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."
People v. Thompson , 77 Misc.2d 700, 353 N.Y.S.2d 698, 702 (N.Y. Sup. Ct. 1974) (second alteration in original) (citation omitted) (quoting Terry , 392 U.S. at 27, 88 S.Ct. at 1883 ); see also Barnes , No. 15149, 1996 WL 501464, at *4 ; Rios , 122 Cal.Rptr.3d at 110.
It is also notable that, in some jurisdictions, persons who reside with a parolee are deemed to have a diminished expectation of privacy as to parole searches of areas of the home in which the parolee has common control. See State v. Johnson , 748 P.2d 1069, 1073 (Utah 1987) ("A warrantless search of a parolee may result in an invasion of privacy, at least to some extent, for those living with the parolee. If the Fourth Amendment rights of nonparolees living with parolees were not reduced, a parolee could avoid all warrantless parole searches by living with a nonparolee and asserting the nonparolee's constitutional rights, and thus emasculate one significant feature of the parole system." (footnote and citations omitted)), abrogated on other grounds , State v. Doporto , 935 P.2d 484 (Utah 1997). This concern is lessened in Pennsylvania in instances where the Board of Probation and Parole requires a "Home Provider Agreement," consenting to searches of common areas based on reasonable suspicion, executed by cohabitants prior to approving the parolee's living arrangements. See, e.g. , Commonwealth v. Smith , 85 A.3d 530, 535 (Pa. Super. 2014) (discussing such an agreement in the context of the consent exception to the Fourth Amendment).
Moreover, as intimated by the Rios court, see id. , interactions with non-offenders are inherent in parole enforcement activities. For example, parolees are commonly prohibited from associating with persons who have been convicted of certain offenses, which in turn may suggest that parole agents are authorized to inquire as to the identity of non-offenders present during a home visit for the purpose of ascertaining compliance with parole conditions. See, e.g. , N.T., July 28, 2014, at 23 (Agent Welsh noting that the parolee in this case was prohibited from keeping the company of persons convicted of drug or weapons offenses); Commonwealth v. Brown , 240 Pa.Super. 190, 195, 361 A.2d 846, 848 (1976) ("Conditions established by the Board [of Probation and Parole] include ... the responsibility to ... avoid 'undesirable' companions ...."). Accordingly, although ancillary aspects of a parole agents' duty are not expressly referenced in the legislation, they nonetheless derive directly from their statutorily imposed functions. In this way, these corollaries may be viewed as reflecting the "special needs" that warrant deviations from traditional constitutional precepts in the parole enforcement realm. Griffin v. Wisconsin , 483 U.S. 868, 873–74, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987) ("A [s]tate's operation of a probation system ... presents 'special needs' beyond normal law enforcement that may justify departures from the usual warrant and probable-cause requirements.").
As to parole agents' designation as peace officers, in addition to their circumscribed common law arrest powers, see generally 5 AM. JUR. 2d Arrest § 40 ("[A] peace officer may arrest [on] reasonable suspicion of felony, whether or not any felony was actually committed ...."), they are statutorily empowered to employ deadly force for self-protection or protection of another and in the course of making an arrest "when [the officer] believes that such force is necessary to prevent death or serious bodily injury to himself or such other person." 18 Pa.C.S. § 508(a)(1). In this respect, it is also notable that parole agents are sanctioned to carry firearms in performing their duties. See 37 Pa. Code § 69.1 – .3.
Accordingly, innate to these common law and statutory authorizations is the power to undertake constitutionally permissive actions that may preempt resort to the use of deadly force. In other words, an agent's authority to use force includes the power to prevent violent confrontation in the first instance, as it "would be anomalous to hold that parole officers may carry weapons like peace officers, place themselves in peril like peace officers, and conduct lawful arrests like peace officers, yet not protect themselves in the face of apparent danger." Barnes , 1996 WL 501464, at *4 ; see also State v. Armstrong , No. 98-1441, 2000 WL 204051, at *3 (Iowa Ct. App. Feb. 23, 2000) (unpublished) ("We believe ... a peace officer conducting a pat-down search for weapons, consensual or otherwise, is acting under the general authority of a peace officer." (citations omitted)).
In terms of previous decisions of this Court finding that various officials had exceeded their statutory authorization, the Commonwealth accurately notes that they are distinguishable as pertaining to limitations on officials' criminal investigative powers. The nature of a Terry frisk is materially different in both scope and purpose from an investigative search for evidence of criminality, since a protective pat-down is "limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a 'full' search." Terry , 392 U.S. at 26, 88 S.Ct. at 1882. "The purpose of a limited search after a temporary detention is not to discover evidence of crime but to allow the peace officer to pursue investigation without fear of violence." Perez v. State , 548 S.W.2d 47, 49 (Tex. Crim. App. 1977) (citations omitted). Critically, the Terry decision did not depend on any express legislative grant of search powers; rather, the United States Supreme Court weighed the government interest in protecting officers from the risks attendant to performing their duties against an individual's right to be free from intrusion. See Terry , 392 U.S. at 23–26, 88 S.Ct. at 1881–82. In this regard, private citizens' Fourth Amendment rights remain substantively unaltered pursuant to our 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.
This weighing analysis is distinguishable from that employed in the criminal investigative context as pertains to the government interest involved. See Commonwealth v. Blystone , 519 Pa. 450, 462, 549 A.2d 81, 86 (1988) ("[T]he [Wiretapping and Electronic Surveillance Control Act] strikes a balance between citizens' legitimate expectation of privacy and the needs of law enforcement officials to combat crime."), aff'd sub nom. Blystone v. Pennsylvania , 494 U.S. 299, 110 S.Ct. 1078, 108 L.Ed.2d 255 (1990).
Thus, although strict statutory interpretation may be appropriate in assessing the boundaries of criminal investigative powers pursuant to legislative enactments, see Kopko , 586 Pa. at 193, 892 A.2d at 779 (citation omitted), a parole agent's authority to conduct a weapons frisk of non-parolees instead attends the agents' statutory duty to effectively supervise parolees and is grounded in the powers concomitant to their peace officer designation. See 61 Pa.C.S § 6152 ("An agent is declared to be a peace officer ....").As for the Scott decision, we agree with the Superior Court's assessment that the case is factually distinguishable insofar as there was no basis for the probation officers to believe that the nephew posed a threat to anyone's safety. Accord Mathis , 125 A.3d at 786–87. In any event, Superior Court decisions are not binding on this Court. See Craley v. State Farm Fire & Cas. Co. , 586 Pa. 484, 498 n.13, 895 A.2d 530, 538 n.13 (2006).
Parenthetically, this asserted strict-interpretation view is arguably in tension with the liberal construction applied in determining the jurisdictional parameters of other statutorily empowered state actors. See Commonwealth v. Lehman , 582 Pa. 200, 203–04, 870 A.2d 818, 820 (2005) ("[T]he [Statewide Municipal Police Jurisdiction Act] should be liberally construed to achieve its purposes ....").
Accordingly, we conclude 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.
Turning to whether Agent Welsh possessed reasonable suspicion to justify the protective frisk in the present circumstances, Appellant notes that a Terry frisk requires the officer to identify "specific and articulable facts" that indicate criminality is afoot, Terry , 392 U.S. at 21, 88 S.Ct. at 1880, while also demonstrating a legitimate fear for officer safety, see Commonwealth v. Rodriquez , 532 Pa. 62, 73–74, 614 A.2d 1378, 1383–84 (1992) (citation omitted). He argues that the focus of the inquiry is on the actions of the defendant, rather than the surrounding circumstances or associates. See Commonwealth v. Maxon , 798 A.2d 761, 768 (Pa. Super. 2002).
As for criminal conduct, Appellant posits that, since Agent Welsh did not observe any active use of marijuana, the smell alone did not provide reasonable suspicion. Further, he emphasizes that the nervous behavior identified by Agent Welsh is not indicative of criminal activity. See Commonwealth v. Tam Thanh Nguyen , 116 A.3d 657, 668–69 (Pa. Super. 2015). Appellant forwards that his conduct, including his cooperativeness throughout the encounter, was inapposite to criminality.
Regarding agent safety concerns, Appellant explains that a person's potential possession of illicit drugs and nervousness have both been rejected as factors suggestive of an individual's dangerousness. See Commonwealth v. Grahame , 607 Pa. 389, 400–01, 7 A.3d 810, 816 (2010) ; Commonwealth v. Cartagena , 63 A.3d 294, 305–06 (Pa. Super. 2013) (en banc ). Further, Appellant advances that a general description of a bulge will not support an inference of a perceived danger; instead, decisional law has required an officer to provide specific details. See, e.g. , Commonwealth v. Carter , 105 A.3d 765, 774–75 (Pa. Super. 2014) (en banc ). In this respect, he notes that Agent Welsh could not positively identify what the bulge was prior to the frisk. From Appellant's perspective, Agent Welsh had only minimal interaction and offered no specificity as to his belief that Appellant was armed.
The Commonwealth responds that Agent Welsh had reasonable suspicion to believe that criminality was afoot and that Appellant presented a danger to the agents' safety based on the following facts: the residence's location in a high-crime area; the strong odor of marijuana throughout the home; the marijuana roaches in the ashtray; Appellant's nervous pacing, unease, and broken eye contact; his nervous and broken speech; the furtive manner in which Appellant picked up and carried his jacket; the bulge in the jacket; and the way in which Appellant turned away from Agent Welsh as he exited the kitchen. The Commonwealth emphasizes that these circumstances must be assessed together in totality, as opposed to Appellant's individualized approach. Agent Welsh's seven years of experience as a state parole agent are also highlighted by the Commonwealth. Further, the Commonwealthobserves that Appellant's claim that Agent Welsh's uncertainty with respect to whether the bulge was a weapon is immaterial in light of this Court's explanation that absolute certainty is not required. See Commonwealth v. Cortez , 507 Pa. 529, 533, 491 A.2d 111, 113 (1985).
Due to the incremental manner in which Agent Welsh's safety concerns developed and his interactions with Appellant, a preliminary assessment of the point at which Appellant was detained is necessary to determining whether reasonable suspicion justified the seizure and frisk.
In fixing the moment at which a detention has occurred, "the pivotal inquiry is whether, considering all the facts and circumstances evidencing the exercise of force, a reasonable [person] would have thought he was being restrained." Commonwealth v. Mendenhall , 552 Pa. 484, 489, 715 A.2d 1117, 1120 (1998) (citing Commonwealth v. Jones , 474 Pa. 364, 373, 378 A.2d 835, 840 (1977) ); see also United States v. Mendenhall , 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) ("[A] person has been 'seized' ... only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."). In Commonwealth v. Strickler , 563 Pa. 47, 757 A.2d 884 (2000), the Court set forth a non-exhaustive list of factors deemed relevant in assessing whether a seizure has occurred: the presence of police excesses; physical contact with the suspect; police direction of the subject's movements; the demeanor of the officer; the location of the confrontation; the manner of expression directed to the citizen; and the content of statements or interrogatories. See id. at 72–73, 757 A.2d at 897–98 (citations omitted). Strickler cautioned, though, that no single factor dictates the ultimate conclusion as to whether a detention occurred, see id. at 59, 757 A.2d at 890, and this Court has recognized that the line between a mere encounter, which requires no suspicion, and an investigative detention, "cannot be precisely defined 'because of the myriad of daily situations in which police[ ] and citizens confront each other on the street.' " Mendenhall , 552 Pa. at 490, 715 A.2d at 1120 (quoting Jones , 474 Pa. at 371, 378 A.2d at 839 ). Ultimately, it is the "nature of the confrontation" that informs the assessment of the totality of the circumstances. Commonwealth v. Lewis , 535 Pa. 501, 509, 636 A.2d 619, 623 (1994).
Pursuant to the above framework, and viewing the largely undisputed facts in the light most favorable to the Commonwealth, see D'Amato , 514 Pa. at 482, 526 A.2d at 305, a reasonable person in Appellant's situation would not feel that he was restrained from leaving throughout the initial encounter. Appellant was left alone in the kitchen with clear access to an exit while the agents focused their attention on the parolee in another room. When Agent Welsh spoke with Appellant, it was in a conversational tone, and he made polite requests explained in terms of ensuring safety. See Commonwealth v. Stubblefield , 413 Pa.Super. 429, 437, 605 A.2d 799, 802 (1992) (indicating that an officer's inquiry addressed in a conversational tone reflects a mere encounter). 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. See Commonwealth v. Martin , 705 A.2d 887, 891 (Pa. Super. 1997) ("A statement by a law enforcement official that a person is suspected of illegal activity is persuasive evidence that the Fourth Amendment [has] been implicated.").
Agent Welsh's statement that he sought to get Appellant out of the house "as soon as I possibly can" and his request that Appellant move to the front room, N.T., July 28, 2014, at 9, might reasonably be construed as implying that the agent was not yet permitting Appellant to leave. Nevertheless, given the context and nature of the limited, non-confrontational interaction to that point, that sole potential inference does not transform the encounter into a seizure, particularly as Appellant noted that Agent Welsh was merely communicating urgency for him to leave. See Mendenhall , 552 Pa. at 489–90, 715 A.2d at 1120 (reasoning that the officer's instruction to the driver to "stick around," while evidencing a demonstration of authority, did not result in a detention, since the motorist was otherwise permitted to freely move around and in and out of the vehicle); Martin , 705 A.2d at 891 (explaining that a police officer's request to a suspected drug dealer to move outside of a restaurant for questioning, performed in a "non-threatening manner" and in the absence of coercion or intimidation, did not constitute a seizure (citing Sibron v. New York , 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) )).
As Agent Welsh further explained, he intended to ask Appellant for identification once in the front room. See N.T., July 28, 2014, at 23. The agent, however, did not make this known to Appellant.
In this regard, all interactions with law enforcement may be viewed, to some degree, as a show of authority to which people usually accede. However, the free-to-leave test is not to be employed in such a literal manner so as to require application of Fourth Amendment exclusionary remedies to all police encounters. As one commentator explains,
Implicit in the introduction of the [officer] and the initial questioning is a show of authority to which the average person encountered will feel obliged to stop and respond. Few will feel that they can walk away or refuse to answer. ... Thus, if the ultimate issue is perceived as being whether the suspect 'would feel free to walk away,' then virtually all police-citizen encounters must in fact be deemed to involve a Fourth Amendment seizure. The Mendenhall – [Florida v.] Royer [460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) ] standard should not be given such a literal reading as to produce such a result. ... Rather, the confrontation is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse.
See Wayne R. LaFave, 4 SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 9.4(a) (5th ed. 2016) (quotation marks and footnotes omitted).
Thus, and reviewing the facts favorably to the Commonwealth, Appellant was not detained until Agent Welsh reached out and seized the jacket. Turning to whether, at that time, Agent Welsh's actions were justified, we agree with the Commonwealth that the underlying facts establish reasonable suspicion that Appellant posed a danger to the officers. Most notably, Appellant displayed nervous behavior and speech, and the agent observed him carefully cradling a jacket containing a prominent bulge approximately the size, and potential shape, of a handgun. As Appellant moved, he angled himself in a manner calculated to conceal the jacket from the agent. Under these circumstances, the agent was justified in investigating further in order to ensure that the object was not a firearm. Although Appellant correctly notes that some of the considerations recited above, when viewed in isolation, would not support a Terry frisk, he fails to appreciate that inferences may be drawn by evaluating these items collectively. See Commonwealth v. Cook , 558 Pa. 50, 58, 735 A.2d 673, 677 (1999) (citations omitted). When so assessed, the specific facts articulated by the officer warranted his belief that Appellant may have posed a threat to the safety of the officer and others within the residence. Accord Mathis , 125 A.3d at 790–91. That being the case, and in light of the suspicion of criminality, see supra note 13, the officer's actions did not violate Appellant's constitutional rights.
Although Agent Welsh testified that, in addition to safety reasons, he intended that Appellant not leave the residence with drugs, see N.T., July 28, 2014, at 31, this subjective alternative basis for the frisk does not invalidate the protective search, since the agent articulated objective, permissible grounds for the intrusion. See Ohio v. Robinette , 519 U.S. 33, 38, 117 S.Ct. 417, 420–21, 136 L.Ed.2d 347 (1996) ("[T]he fact that an officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." (alteration omitted) (quoting Whren v. United States , 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996) )).
To the extent Appellant argues that a Terry frisk in this context also requires reasonable suspicion that the subject is engaged in criminality, such suspicion was present in this case. By the time of the seizure, the agent had developed individualized reasonable suspicion that Appellant may be harboring contraband related to the evidence of recent marijuana use and/or a weapon. See N.T., July 28, 2014, at 11 (describing that, when Appellant picked up his coat, he held it "like it was a baby [with] a protecting type of grip," and noting that his nervous behavior, the manner in which he was turning away from the agent as he walked, and the bulge in his jacket raised the agent's suspicions that he may have been "trying to remove contraband [or] has something that could be unsafe to my partner or my offender").
Given that the agent possessed reasonable suspicion of both danger and criminality, we need not determine whether, or under what circumstances, a parole agent—who is lawfully inside a private residence, in the performance of official duties, and reasonably concerned about safety—may perform a weapons frisk of a non-parolee, even in the absence of reasonable suspicion of criminality. This issue would be more sharply presented in a case where the suspicion related to danger alone.
Contrary to Justice Wecht's proffer that the two-tiered Terry analysis is inviolable, see Dissenting Opinion, at 722 n.9 (Wecht, J.), courts have acknowledged that there are circumstances in which protective police actions predicated on Terry principles do not require a suspicion of criminality. See, e.g. , Commonwealth v. Narcisse , 457 Mass. 1, 927 N.E.2d 439, 445 n.6 (2010) ("There are, of course, circumstances other than consensual encounters in which police officers may pat frisk a person in the absence of a reasonable suspicion that the person is (or has been) engaged in criminal activity." (citing, inter alia , Maryland v. Buie , 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) ); see also United States v. Flippin , 924 F.2d 163, 166 (9th Cir. 1991) ("When the police have lawfully entered a dwelling and have a reasonable suspicion that a suspect is armed, a Terry pat down for weapons is permissible."). Indeed, the two United States Supreme Court cases cited in Justice Wecht's dissent relative to this discrete matter, see Dissenting Opinion, at 722 n.9 (Wecht, J.), highlight pertinent considerations that may, in the proper situation, support a frisk absent individualized reasonable suspicion of criminality.
In Arizona v. Johnson , 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009), for example, the Court effectively waived the requirement of reasonable suspicion of criminality relative to automobile passengers. See id. at 326–27, 129 S.Ct. at 784. The Court reasoned as follows:
[Although], in a lawful traffic stop, there is probable cause to believe that the driver has committed a minor vehicular offense, ... there is no such reason to stop or detain the passengers. On the other hand ... the risk of a violent encounter in a traffic-stop setting stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop.
Id. at 331–32, 129 S. Ct. at 787 (citations and quotation marks omitted). Such a rationale could arguably be employed when considering the encounters that occur between non-parolees and parole agents during a home visit, particularly when viewed in reference to the Supreme Court's acknowledgement that in-home confrontations present a particularized danger. See, e.g. , Buie , 494 U.S. at 333, 110 S.Ct. at 1098 (explaining that in-home encounters are as, or more, dangerous than on-the-street or roadside confrontations, since the officer is on the adversary's "turf" and in a confined setting of unknown configuration).
In any event, as already emphasized, the present factual circumstances do not require resolution of such considerations.
Accordingly, the order of the Superior Court is affirmed.
Justices Baer, Todd and Mundy join the opinion.
Justice Dougherty files a dissenting opinion in which Justice Donohue joins.
Justice Wecht files a dissenting opinion.
JUSTICE DOUGHERTY, dissenting
I disagree the statutory authority conferred on parole agents includes the ancillary authority to detain and frisk a non-parolee private citizen present during a routine visit to a parolee's home, and accordingly I respectfully dissent.
Our interpretation of statutory provisions is guided by the Statutory Construction Act, 1 Pa.C.S. §§ 1501 – 1991, "under which our paramount interpretive task is to give effect to the intent of our General Assembly in enacting the particular legislation under review." Commonwealth v. Wright , 609 Pa. 22, 14 A.3d 798, 814 (2011), citing 1 Pa.C.S. § 1921(a) ("The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions."). The plain language of a statute is generally the best indication of the General Assembly's intent. Bowser v. Blom , 569 Pa. 609, 807 A.2d 830, 835 (2002). As such, "[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit." 1 Pa.C.S. § 1921(b) ; see also Dep't of Transp. v. Taylor , 576 Pa. 622, 841 A.2d 108, 111–12 (2004) ("As a general rule courts do not have the power to ignore clear and unambiguous statutory language in pursuit of a statute's alleged or perceived purpose."). Additionally, this Court has recognized expanding the terms of a statute is an act reserved for the General Assembly and should not be accomplished through judicial action. See, e.g., Commonwealth v. Kenneth Scott, 516 Pa. 346, 532 A.2d 426, 429 (1987) (Court refused to add exceptions to spousal witness incompetency statute even after recognizing legitimate criticisms); Commonwealth v. Clanton , 395 Pa. 521, 151 A.2d 88, 92 (1959) (language of statute "cannot be ignored in pursuit of its spirit even though a broad or liberal construction would obviously protect society"). Accordingly, "although one is admonished to listen attentively to what a statute says[; o]ne must also listen attentively to what it does not say." Wright , 14 A.3d at 814, quoting Kmonk–Sullivan v. State Farm Mut. Auto, Ins. Co. , 567 Pa. 514, 788 A.2d 955, 962 (2001) (internal quotations omitted).
In this case, as the majority recognizes and even the Commonwealth concedes, there is no explicit statutory authority for parole agents to frisk a non-offender like appellant. See Majority Opinion, at 708, quoting Commonwealth v. Mathis , 125 A.3d 780, 785 (Pa. Super. 2015) (Parole Code "does not otherwise reveal legislative intent to 'empower parole agents to act as police officers with respect to non-offenders or private citizens' "). Indeed, the plain language of Sections 6152 and 6153 expressly and unambiguously limits the statutory authority of parole agents to detain and search only the "offenders" under their supervision. See 61 Pa.C.S. §§ 6152 (conferring parole agents with "police power and authority ... to arrest ... any parolee or probationer under the supervision of the [parole] board") (emphasis added), 6153(b)(1) (conferring parole agents with authority to "search the person and property of offenders ") (emphasis added), 6153(d)(1)(i) ("personal search of an offender may be conducted by an agent," in pertinent part, "if there is a reasonable suspicion to believe that the offender possesses contraband or other evidence of violations of the conditions of supervision") (emphases added). The majority also recognizes that "ancillary aspects of a parole agents' duty are not expressly referenced in the legislation[.]" See Majority Opinion, at 709.
As a comparison, municipal police and the Pennsylvania State Police (PSP) are expressly granted statutory authority to enforce laws as to "[a]ny offense ," 42 Pa.C.S. § 8952(1) (municipal police) (emphasis added), and arrest for "all violations of the law ." 71 P.S. § 252(a) (PSP) (emphasis added). It is clear from this distinction that the General Assembly could have drafted language giving parole officers broader authority if it chose to do so, but it instead granted parole agents the authority over parolees only.
See 61 Pa.C.S. §§ 6101 –53.
Additionally, I would reject the Commonwealth's argument Sections 6153(b)(2) ("Nothing in this section shall be construed to permit searches or seizures in violation of the Constitution of the United States or section 8 of Article I of the Constitution of Pennsylvania") and 6153(c) ("No violation of this section shall constitute an independent ground for suppression of evidence in any probation or parole proceeding or criminal proceeding") provide the basis for such ancillary authority. Subsection (b)(2) clearly applies to further circumscribe the limited nature of the authority granted to parole agents under Section 6153. Subsection (c) obviously refers to violations of Section 6153, which in turn relates only to the authority of parole agents over parolees, and therefore, any violation must by definition involve parolees. There is nothing in Section 6153 to demonstrate the General Assembly contemplated extending the powers of parole agents to include authority to frisk private citizens, or otherwise granting the broad authority of police officers generally.
See Commonwealth v. Rodriquez , 532 Pa. 62, 614 A.2d 1378, 1383–84 (1992) (recognizing that police officers may seize a person and conduct a limited search of the individual's outer clothing for weapons, "if the police officer observes unusual and suspicious conduct on the part of the individual seized which leads him reasonably to conclude that criminal activity may be afoot and that the person with whom he is dealing may be armed and dangerous").
Furthermore, relevant precedent undermines the majority's decision to look outside the statutory framework of the Parole Code to infer ancillary authority of parole agents over private citizens. See e.g. , Commonwealth v. Dobbins , 594 Pa. 71, 934 A.2d 1170 (2007) ; Kopko v. Miller , 586 Pa. 170, 892 A.2d 766 (2006) ; and Commonwealth v. Price , 543 Pa. 403,672 A.2d 280 (1996). In Dobbins , for example, this Court considered whether sheriffs' deputies have the authority under the Controlled Substances Act to conduct independent drug investigations. Dobbins , 934 A.2d at 1178. The Court expressly held "sheriffs have only such independent investigatory authority to seek out evidence of wrongdoing that is committed outside their presence as is expressly authorized by statute," and because the Controlled Substances Act did not provide such authority, the Superior Court erroneously determined the deputies "have common[ ]law authority to conduct an independent investigation of a suspected methamphetamine manufactory, obtain a search warrant in furtherance of that investigation, and effectuate arrests for any offenses the investigation reveals." Id. at 1171.In holding the deputies could seek a search warrant only where a breach of the peace or felony occurred within their presence, the Dobbins Court relied on our earlier decision in Kopko . Id. at 1181, citing Kopko . In Kopko , this Court determined sheriffs are not "investigative or law enforcement officers" pursuant to the Wiretapping and Electronic Surveillance Control Act (Wiretap Act). Kopko , 892 A.2d at 767. The Court first recognized the Wiretap Act, which authorizes electronic surveillance under certain circumstances, involves an infringement upon the right to privacy and thus must be strictly construed. Id. at 772. The Court further concluded there was no legal support for the proposition sheriffs' deputies have the same powers as police officers. Instead, the Court determined sheriffs' deputies are statutorily authorized only to investigate and arrest for breaches of the peace and felonies committed in their presence, and such powers are "no different from that of a private citizen." Id. at 774.
I recognize the force in the Majority's assertion these cases pertain to limitations on criminal investigative powers. However, each case also supports the general proposition that statutes which diminish and infringe on the right to privacy—such as the Wiretapping and Electronic Surveillance Control Act, the federal statute empowering FBI agents, and the Parole Code provisions at issue here—must be strictly construed, and evidence gathered when agents overstep their statutory authority should be suppressed. See Boettger v. Miklich , 534 Pa. 581, 633 A.2d 1146, 1148 (1993) (statute in derogation of right to privacy must be strictly construed).
See, e.g., New Jersey v. T.L.O., 469 U.S. 325, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) ; Terry v. Ohio , 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ; Elkins v. United States , 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960).
18 Pa.C.S. §§ 5701 –5782.
An "[o]ffender" is defined as "[a]ny person subject to the parole or probationary supervision of the [Pennsylvania Board of Probation and Parole]." 61 Pa.C.S. § 6151.
Similarly in Price , this Court considered whether an FBI agent was statutorily authorized to make an arrest for motor vehicle violations: failure to stop at a stop sign and driving under the influence, graded as a misdemeanor. Price , 672 A.2d at 281. The Court considered the relevant statute, 18 U.S.C. § 3052, which authorizes FBI agents to make warrantless arrests only where there are reasonable grounds to believe a felony is being committed, and determined the agent lacked statutory authority to stop the vehicle and arrest Price under the circumstances presented. Id. at 282. As the stop was unlawful, the Court determined the evidence should have been suppressed. Id. at 285.
In my view, principles of statutory construction and the foregoing precedent undermine the majority's decision to infer ancillary authority of parole agents over private citizens in a case like this one. As such, the exclusionary rule requires suppression of the evidence obtained as a result of the agents' unauthorized actions. See, e.g. , Commonwealth v. McCandless , 538 Pa. 286,648 A.2d 309, 311 (1994) (even where probable cause exists that crime is being committed, investigating municipal police officer lacked statutory authority to detain defendant because information establishing probable cause was obtained outside officer's territorial jurisdiction, and therefore evidence should be suppressed). See also Price , 672 A.2d at 284–85 (evidence recovered as result of vehicle stop by FBI agent acting outside statutory authority must be suppressed regardless of whether stop was otherwise supported by probable cause). I would hold the evidence recovered as a result of the parole agents' similarly unlawful actions must be suppressed.
I recognize McCandless is factually distinguishable because the parole agents here were not acting outside of their territorial jurisdiction, but within the scope and location of their authority when they encountered appellant. But, in my view, the Parole Code expressly provided them with authority—and thus jurisdiction—over parolees only. As such, they acted outside this jurisdiction when asserting authority over appellant under the facts of this case.
As the Supreme Court of the United States has explained, the Fourth Amendment has never been understood as "a redundant guarantee of whatever limits on search and seizure legislatures might have enacted." Virginia v. Moore , 553 U.S. 164, 168–69, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008). Whether a search is constitutionally reasonable does not "depend on the law of the particular State in which the search occurs." California v. Greenwood , 486 U.S. 35, 43, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988). Although local statutes may "vary from place to place and from time to time," the Supreme Court has established that the Fourth Amendment's protections are not "so variable." Whren v. United States , 517 U.S. 806, 815, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Cf. City of Ontario, Cal. v. Quon , 560 U.S. 746, 764, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010) ("Respondents point to no authority for the proposition that the existence of statutory protection renders a search per se unreasonable under the Fourth Amendment. And the precedents counsel otherwise."); see also United States v. Williams , 124 F.3d 411, 425–28 (3d Cir. 1997) (holding that disclosure of wiretapped calls to grand jury in violation of Pennsylvania statute did not warrant suppression in federal prosecution); State v. Slayton , 147 N.M. 340, 223 P.3d 337, 346 (2009) (providing that where an arrest was made by a police service aide in violation of a statute requiring such an arrest to be made by a uniformed, commissioned police officer, "[t]he only inquiry of consequence to the Fourth Amendment is whether the state actor has reasonable suspicion to detain or probable cause to arrest the defendant for a crime committed in his or her presence").
I also respectfully dissent from the Majority's additional determination the parole agents here possessed reasonable suspicion to justify a protective frisk. Appellant was seized when the parole agents directed him to pick up his belongings and move to the front room—no reasonable person would have felt free to leave at that point. See Commonwealth v. Matos , 543 Pa. 449, 672 A.2d 769, 774 (1996) (person is seized when totality of circumstances suggest reasonable person would believe he was not free to leave). This is true regardless of appellant's testimony that Agent Welsh asked him "do you mind leaving" and appellant felt he was being rushed, N.T. 7/28/14 at 54, because Agent Welsh ultimately directed appellant to "grab [his] personal belongings and come to the front room." Id. at 10. Although appellant could have exited through the back door if he felt "free to leave," he instead complied with Agent Welsh's command.
Police officers—or, in this case, parole agents whom we might view arguendo as imbued with the same authority—must have an individualized suspicion of specific criminal activity to justify the seizure of an individual and allow admission of evidence discovered as a result of the seizure. See, e.g. , Commonwealth v. Mistler , 590 Pa. 390, 912 A.2d 1265 (2006) (suppression required where group of students were detained by police, questioned, and subjected to breathalyzer testing at fraternity party based solely on their underage status); Commonwealth v. Wood , 833 A.2d 740 (Pa. Super. 2003) (suppression required where underage bar patron was detained by police without specific observation defendant consumed, possessed, purchased, or attempted to purchase alcohol). In other words, officers must have reasonable suspicion that each individual seized was participating in criminal activity. Not only is individualized suspicion required, but this suspicion must be based on current conduct. Commonwealth v. Melendez , 544 Pa. 323, 676 A.2d 226, 229 (1996) ( "Terry stops, however, are designed to address immediate suspicions of current illegal conduct."). See also id. at 229 n.6 ("The Terry situation concerns 'necessarily swift action predicated upon the on-the-spot observations of the officer on the beat. ...' "), quoting Terry v. Ohio , 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
As in Mistler and Wood , where suppression was required after police officers detained underage students based only on their age and the general presence of alcohol in the vicinity, I would hold suppression is required here where appellant was detained based only on an ambient odor of marijuana, the presence of smoked marijuana remains, and his nervous behavior, which included checking his cell phone. At no time did the parole agents observe either appellant or their parolee Waters smoking marijuana, and there is no evidence to suggest the agents could discern whether appellant, Waters, both, or neither had smoked marijuana prior to their arrival. Furthermore, appellant specifically complied with all requests from the parole agents. The record does not support a finding there was an individualized suspicion appellant was involved in criminal activity at any point in time and there is even less support for a finding there was current criminal activity by appellant on which to base his initial detention. As the subsequent frisk would not have occurred but for the illegal detention, the fruits of that frisk, including the firearm and the marijuana found later, should have been suppressed. See Commonwealth v. Hernandez , 594 Pa. 319, 935 A.2d 1275, 1283–84 (2007) (fruit of poisonous tree doctrine requires exclusion of all evidence obtained as result of constitutional violation), citing Wong Sun v. United States , 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). I would reverse the Superior Court as to both questions presented for this Court's review.
This is not to say the odor of marijuana or presence of smoked marijuana remains will never rise to the level of reasonable suspicion that criminal activity is afoot. A police officer who smells burnt marijuana while conducting a vehicle stop may have a reasonable suspicion the driver of the vehicle is driving under the influence. However, even if appellant had smoked marijuana prior to the parole agents' arrival, it appears that receiving a haircut while under the influence of marijuana is not considered criminal activity. But see 35 P.S. § 780–113(a)(31)(i) ("The following acts and the causing thereof within the Commonwealth are hereby prohibited ... the possession of a small amount of marihuana only for personal use[.]").
See Commonwealth v. Price , 543 Pa. 403, 672 A.2d 280, 284 (1996) (holding that an FBI agent engaged in conduct fairly attributable to the state when he stopped the defendant by using his lights and sirens and displayed his FBI badge, an "obvious display of authority" which "imbued his actions with an official aura").
Justice Donohue joins this dissenting opinion.
JUSTICE WECHT, dissenting
Darrin Orlando Mathis was a private citizen. He was not a parolee or probationer over whom state parole agents had any authority pursuant to the Prisons and Parole Code (hereinafter, "Parole Code").1 Nonetheless, during a routine visit to the home of parolee Gary Waters, two parole agents detained Mathis and frisked him. The learned Majority holds that, although parole agents have no statutory authority over third parties whom they encounter in the performance of their duties, they nonetheless possess "ancillary" authority over such private citizens. Maj. Op. at 709–10. Consequently, according to the Majority, parole agents have the authority to conduct a protective frisk of non-parolees within the course of executing their statutory duties, premised upon reasonable suspicion. Id. at 711.2
I cannot agree. There is no statutory basis, "ancillary" or otherwise, for holding that parole agents have authority over private citizens whom they encounter in the performance of their duties. But there is, or can be, a constitutional basis. Our law requires that interactions between parole agents and third parties be examined in light of the state action doctrine, as governed by Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution. As state actors, parole agents are bound by our Constitutions, irrespective of the presence or absence of statutory authority. Settled precedent imposes a reasonableness test in all such contexts.3 Under this venerable constitutional principle, I agree with the Majority that parole agents may conduct a protective frisk of non-parolees within the course of executing their statutory duties, subject to the constitutional requirements of reasonable suspicion that criminal activity is afoot and a reasonable belief that the agents might be in danger. However, I cannot agree with the Majority that the parole agents in this case possessed the requisite individualized reasonable suspicion that Mathis was engaged in criminal activity. Under the facts of record, therefore, I believe that suppression is warranted, and I must respectfully dissent.
The Parole Code establishes the statutory authority of state parole agents over parolees by defining the agents' supervisory relationship to "offenders."4 The Parole Code grants the parole agent authority to make a warrantless personal search of a parolee premised upon reasonable suspicion that the parolee possesses contraband or evidence of a parole violation, 61 Pa.C.S. § 6153(d)(1)(i), to conduct property searches with prior approval or under exigent circumstances, id. at § 6153(d)(3), and to detain a parolee who is present during a property search, id. at § 6153(d)(5). Nothing in the Parole Code provides parole agents with authority over non-offenders or private citizens. The Parole Code does not address—much less define—the limits of a parole agent's interaction with a third party.
For "ancillary" authority to exist, it must, a fortiori , be "ancillary" to something. See Merriam–Webster's Dictionary of Law , 1996 (defining ancillary as "having a subordinate, subsidiary, or second nature[,]" "serving as a supplement or addition[,]" or "directly related"). Here, because the Parole Code provides no statutory authority for the agents' actions vis-à -vis third parties, no foundation exists upon which any "ancillary" power may be appended. Further, it is contrary to settled principles of statutory interpretation and judicial restraint for courts to manufacture "ancillary" authority. Only the General Assembly can establish statutory authority, "ancillary" or otherwise.
The Parole Code is silent regarding the requirements of (or limits to) the interaction between parole agents and individuals who happen to be present when the parole agents are executing their statutory duties. We are not presently addressing a statutory violation as such. Instead, we are confronting an absence of statutory authority. Because no statute authorizes or restricts a parole agent's ability to act with respect to a third party, we are left with our Constitutions as the only relevant yardsticks to review the exercise of governmental authority.5
There is no dispute that the parole agents are state actors by virtue of the Parole Code. Agents Welsh and Bruner were acting within the scope of their employment and fulfilling their statutory supervisory duties when they entered Waters' approved residence to conduct a routine home visit. Moreover, Agents Welsh and Bruner displayed their authority in a manner that imbued their actions with an unmistakably official quality.6 Consequently, they acted under color of state law when they detained Mathis.
Although the parole agents were acting outside of the scope of their statutory authority when they seized Mathis, the Parole Code is not irrelevant to the constitutional analysis. The Parole Code established the parole agents as state actors and authorized the agents to be in Waters' residence. This authority led to the agents' interaction with Mathis. To be lawful, any such interaction must comport with the constitutional requirement of reasonableness. See Elkins v. United States , 364 U.S. 206, 213, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) ("[T]he Federal Constitution, by virtue of the Fourteenth Amendment, prohibits unreasonable searches and seizures by state officers."); Burdeau v. McDowell , 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921) ("[The] origin and history [of the Fourth Amendment] clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies. ...").
Because the parole agents were behaving as state actors, their interaction with Mathis was limited by the "fundamental command" of the Fourth Amendment that a search or seizure may not be unreasonable. New Jersey v. T.L.O. , 469 U.S. 325, 340, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985) ; see also Elkins v. United States , 364 U.S. 206, 222, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) ("[W]hat the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures."). The central inquiry under the Fourth Amendment in this case, as in all such cases, is "the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security." Terry v. Ohio , 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
In Terry , the United States Supreme Court held that an investigatory stop and frisk requires both reasonable suspicion that criminal activity is afoot and that the individual is armed and dangerous. Terry , 392 U.S. at 22–24, 88 S.Ct. 1868. Consistent with this authority, I would hold that, if parole agents acting within the scope of their employment and executing their duties pursuant to the Parole Code develop reasonable suspicion that their parolee and a third party are engaging in criminal activity, it is reasonable for Fourth Amendment purposes for those agents to intervene in order to fulfill their statutory supervisory obligations as to their offender and to maintain the status quo while the agents summon police officers. Further, in view of this limited constitutional authority to detain third parties in order to halt ongoing criminal activity, the parole agents also have the constitutional authority to frisk such persons for weapons if they have reason to believe that those persons are armed and dangerous. See Terry , 392 U.S. at 27, 88 S.Ct. 1868. As the Court held in Terry with respect to police officers, "[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, it would appear to be clearly unreasonable to deny the officer the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm." Terry , 392 U.S. at 24, 88 S.Ct. 1868.
Although the protection against unreasonable searches and seizures afforded by the Pennsylvania Constitution is broader than that conferred by the United States Constitution, we have always followed Terry in stop and frisk cases. Commonwealth v. Jackson , 548 Pa. 484, 698 A.2d 571, 573 (1997).
The evidence in this case demonstrates that the parole agents seized Mathis when they directed him to gather his belongings and move into another room. Agent Welsh's command to Mathis to grab his belongings and relocate to another room would convey to a reasonable person that he or she was not free to leave and was, therefore, detained. See Commonwealth v. Jones , 474 Pa. 364, 378 A.2d 835, 839 (1977) (holding that, in assessing whether there was a detention, the court will view all circumstances evidencing a show of authority or exercise of force to assess whether a reasonable person would have thought he or she was being restrained); Terry , 392 U.S. at 16, 88 S.Ct. 1868 ("[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person."). If, as the Majority holds, Mathis was free to leave until the moment that Agent Welsh seized Mathis' jacket, the parole agents could simply have requested Mathis to exit the residence through the kitchen door. By commanding Mathis to relocate to another room, Agent Welsh made clear that departure was not an option.
To comport with our Constitutions, Mathis' detention must have been premised upon reasonable suspicion that Mathis was engaging in criminal activity. However, it is plain from the record before us that Mathis was detained based solely upon Agent Welsh's generalized suspicion arising from an odor of marijuana and the presence of burnt "roaches" in the ashtray, coupled with Mathis' nervousness in the presence of the parole agents. Agent Welsh did not testify that he observed Mathis smoking marijuana, nor did Agent Welsh establish reasonable suspicion that Mathis was engaged at that time in criminal activity. Accepting Agent Welsh's testimony, as the trial court apparently did, the record nonetheless fails to support any finding of individualized suspicion that Mathis was involved in criminal activity at any relevant time such that Mathis' detention could be sustained under our Constitutions. The evidence revealed by the ensuing frisk should have been suppressed, as it derived from the initial, unlawful detention. See Wong Sun v. United States , 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) ; Commonwealth v. Hernandez , 594 Pa. 319, 935 A.2d 1275, 1283–84 (2007).
The Majority suggests that we need not determine in this case whether a parole agent may perform a weapons frisk of a non-parolee in the absence of reasonable suspicion of criminality, suggesting instead that we may wish to confront this issue in a future case. I disagree with this approach. Our precedents do not allow us to countenance a weapons frisk by a parole agent of a non-parolee in the absence of reasonable suspicion of criminality. The Majority appears to forget that Terry requires a two-step analysis:
In a pathmarking decision, Terry v. Ohio , 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), the Court considered whether an investigatory stop (temporary detention) and frisk (patdown for weapons) may be conducted without violating the Fourth Amendment's ban on unreasonable searches and seizures. The Court upheld "stop and frisk" as constitutionally permissible if two conditions are met. First, the investigatory stop must be lawful. That requirement is met in an on-the-street encounter, Terry determined, when the police officer reasonably suspects that the person apprehended is committing or has committed a criminal offense. Second, to proceed from a stop to a frisk, the police officer must reasonably suspect that the person stopped is armed and dangerous.
Arizona v. Johnson , 555 U.S. 323, 326–27, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) ; see also Commonwealth v. Hawkins, 547 Pa. 652, 692 A.2d 1068, 1070 (1997) ("[B]efore police may briefly detain a person, there must be reasonable suspicion of criminal conduct, and before police may pat down for weapons, there must be a reasonable belief that the suspect is presently armed and dangerous."). There is no precedent or constitutional authority that permits the Majority to dispense with the first step of the Terry analysis. The Supreme Court of the United States has rejected the view that inherent danger obviates the need for reasonable suspicion of criminal activity prior to a weapons frisk. Maryland v. Buie , 494 U.S. 325, 334 n.2, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990).
Even assuming, arguendo , that the detention did not commence until Agent Welsh grabbed Mathis' jacket (as the Majority posits, Majority Opinion at 713–14), the record does not support a finding of individualized suspicion that Mathis was harboring contraband related to the odor of marijuana. Standing alone, Agent Welsh's belief that Mathis might be harboring a weapon could not justify a detention. Even where there is a possibility that an individual is armed, "Terry requires reasonable, individualized suspicion before a frisk for weapons can be conducted." Buie , 494 U.S. at 334.
Accordingly, I cannot subscribe to the Majority's view that Agent Welsh possessed some "ancillary" statutory authority to detain and frisk Mathis. Instead, evaluating the interaction between Agent Welsh and Mathis as an interaction between a state actor bound by our Constitutions and a private individual, I am compelled to conclude that the detention was not supported by the requisite reasonable suspicion that criminal activity was afoot. Under these circumstances, suppression was warranted. I respectfully dissent.