Commonwealth v. Parker

152 A.3d 309

COMMONWEALTH of Pennsylvania, Appellant

v.Dayquan E. PARKER, Appellee

No. 340 MDA 2016

Superior Court of Pennsylvania.

Argued August 17, 2016

FILED DECEMBER 12, 2016

Travis S. Anderson, Assistant District Attorney, Lancaster, for Commonwealth, appellant.

Phillip A. Michael, Public Defender, Lancaster, for appellee.

BEFORE: GANTMAN, P.J., PANELLA, J., and JENKINS, J.

OPINION BY GANTMAN, P.J.:

Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Lancaster County Court of Common Pleas, which granted in part the pretrial suppression motion of Appellee, Dayquan E. Parker. We affirm the trial court's denial of suppression of some of the evidence, reverse the trial court's suppression of other evidence, and remand for further proceedings.

The relevant facts and procedural history of this case are as follows. On April 23, 2014, Appellee entered a negotiated guilty plea at docket number CP–36–CR–0005580–2013, to charges of fleeing or attempting to elude a police officer, reckless driving, driving without a license, and other motor vehicle violations. The court sentenced Appellee that day to two years' probation for the fleeing or attempting to elude a police officer conviction and imposed no further penalty for the remaining offenses. Appellee reviewed and signed Probation and Parole Regulations ("Regulations"), which detailed the terms and conditions of his probation. The Regulations provided, in relevant part, as follows:

Probation and Parole Regulations

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2. I will live in a residence approved by my probation officer. I will not change my residence without the approval of my probation officer. My probation officer may visit my home at any time in order to effectively confirm compliance with the conditions of my supervision , and I will cooperate with the efforts of my probation officer when he/she does so.

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6. I will not possess, have control of, or have in my place of residence or vehicle, any contraband such as stolen property, non-prescribed controlled substances, drug paraphernalia, firearms (hand guns, rifles, shotguns) or other deadly weapons, including, but not limited to, bow and arrow, prohibited offensive weapons, or any instruments of crime. I will submit my person, property, place of residence, vehicle and personal effects to search at any time by my probation officer based upon reasonable suspicion that I am in possession of contraband .

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8. I will abstain from the unlawful possession, use or delivery of any non-prescribed controlled substances, including marijuana. I will submit to urinalysis and/or breathalyzer testing as required by my probation officer. Any refusal to submit to testing will be considered a violation of my supervision. I will reimburse the court for the cost of laboratory fees sustained upon positive confirmation of drug use.

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(Regulations, dated April 23, 2014, at 1 ¶¶ 2, 6, 8) (emphasis added). Adult Probation and Parole Services ("APPS") staff member Madeline Olivera reviewed the Regulations with Appellee. Appellee signed the last page of the Regulations below the "Acknowledgment" stating: "I hereby acknowledge that I have read, or have had read to me the foregoing rules, regulations and special conditions of my probation/parole. I fully understand and agree to follow the rules and I understand the penalties should I be found in violation." (Id. at 3).

On February 12, 2015, at approximately 12:00 p.m., several probation officers from APPS' Special Intervention Unit ("SIU") went to Appellee's residence to verify Appellee's compliance with the terms and conditions of his probation. The SIU officers wore official attire and displayed their badges. The probation officers encountered Appellee at the rear of the residence; Appellee was holding his daughter in his arms and restraining his dog. After explaining the purpose of their visit, the probation officers asked Appellee to control his dog, and Appellee complied. The probation officers stepped inside the doorway to Appellee's kitchen and immediately observed, in plain view, clear, empty, corner-cut baggies; cigar packages, which were opened and discarded on the floor; and small rubber bands. From the probation officers' training and experience, they recognized these items as drug paraphernalia. The probation officers also saw a shotgun in an open closet in the kitchen. The probation officers then asked Appellee to have someone watch his daughter. Appellee handed his daughter to a woman present in the residence.

Appellee accompanied the probation officers to the third floor of the residence and Appellee's bedroom. Appellee sat down on a box spring/mattress that was on the floor. The probation officers noticed a box of nine-millimeter rounds on the floor next to the box spring/mattress. In a half-open dresser drawer, the officers also saw clear, empty baggies, U.S. currency, and a digital scale. Additionally, the probation officers observed some type of attachment to a device used to smoke marijuana, which had liquid dripping from it. The probation officers also observed several prohibited knives. At this point, the probation officers placed Appellee in handcuffs.

Agent Joseph Schauren, the team leader for the SIU, called his deputy director, Mike Hansberry, who gave the probation officers permission to search the residence based on what the probation officers had observed in plain view. Agent Schauren next called Detective John Burkhart of the Lancaster County Drug Task Force ("DTF"), who agreed to send DTF agents to Appellee's residence. Three DTF agents arrived at the residence approximately fifteen minutes later. The probation officers asked the DTF agents if they were interested in pursuing charges based on what the probation officers had seen in plain view. After some discussion, the DTF agents decided not to pursue a search warrant or criminal charges against Appellee. Before leaving the residence, the DTF agents contacted the Lancaster City Code of Compliance Authority ("CCA") to report the deplorable living conditions in Appellee's residence. The DTF agents then left the premises. Agents of CCA arrived shortly thereafter, photographed the residence, and stated their intent to condemn the home. After the CCA agents left, some of the probation officers took Appellee to a holding cell at the APPS' office.

With prior approval from their deputy director, the remaining probation officers performed the authorized search of Appellee's residence. The probation officers opened a refrigerator in Appellee's bedroom located directly next to the box spring/mattress, discovered suspected cocaine, removed the substance, and conducted a field test in the kitchen; it tested positive for cocaine.¹ At that point, Agent Schauren placed a second call to Detective Burkhart, who sent two drug task force agents back to Appellee's residence. When the DTF agents arrived, they observed the cocaine and filed a criminal complaint against Appellee for possession of a controlled substance with the intent to deliver ("PWID") and possession of drug paraphernalia.²

On October 7, 2015, Appellee filed a motion to suppress. Appellee argued the probation officers' entry into Appellee's residence constituted a search lacking reasonable suspicion.³ Appellee further claimed the probation officers' search of the refrigerator was unlawful where the DTF agents had declined to pursue a search warrant or criminal charges. Appellee maintained the probation officers acted as "stalking horses" for the DTF agents and exceeded the scope of their authority by searching for evidence of new crimes after they had already discovered the evidence of probation violations. Appellee sought suppression of all items the probation officers observed in plain view as well as the cocaine recovered from the refrigerator.

The court held a suppression hearing on January 15, 2016. The Commonwealth introduced testimony/evidence from Agent Schauren and Detective Ryan Kelly of the DTF. Agent Schauren testified, inter alia , that his deputy director asked him to conduct an unannounced "home visit" at Appellee's residence on February 12, 2015. Agent Schauren explained a home visit occurs when probation officers visit a probationer's residence to confirm he is complying with the terms of his probation. Agent Schauren highlighted that the Regulations expressly permitted a probation officer to visit Appellee's home at any time to confirm Appellee's compliance with the Regulations. Agent Schauren described a typical home visit, during which the probation officers would make contact with the probationer, explain their presence, and conduct a "tour" of the residence. During a home visit, the probation officers first make only a visual inspection of the probationer's residence. If the officers do not see evidence of a probation violation, they will conclude the home visit and leave. If, however, the probation officers observe items in plain view, which are considered probation violations, then the probation officers can search the premises, once they obtain permission from their supervisor, based on reasonable suspicion that the probationer is in possession of contraband.

During the course of the probation officers' home visit at Appellee's residence, Agent Schauren said he observed, in plain view, clear, empty, corner-cut baggies; cigar packages, which had been opened and discarded; small rubber bands; a digital scale; and an attachment to a smoking device, with liquid dripping from it. Agent Schauren immediately recognized these items as drug paraphernalia, based on his training and experience. Agent Schauren described how the small, clear baggies are often used to package drugs and the cigars can be hollowed-out to smoke marijuana. Agent Schauren said he also saw, in plain view, a shotgun, ammunition, and several prohibited knives. Appellee's possession of these items constituted violations of his probation as set forth in the Regulations. Agent Schauren placed Ap...