In re J.E.

907 A.2d 1114

In the Interest of J.E., A Minor.

Appeal of J.E.

Superior Court of Pennsylvania.

Submitted January 3, 2006.

Filed September 8, 2006.

COPYRIGHT MATERIAL OMITTED

Carrie L. Allman, Public Defender, Pittsburgh, for E.J., appellant.

Michael W. Streily, Deputy Dist. Atty., Pittsburgh, for Com., appellee.

BEFORE: TODD, McCAFFERY, and JOHNSON, JJ.

OPINION BY JOHNSON, J.:

¶ 1 J.E., a minor, appeals from the juvenile court's commitment order confining him to Youth Forestry Camp following a finding that he had committed delinquent acts and violated his probation. The juvenile court adjudicated J.E. delinquent for possession of a firearm by a minor and possession of a firearm without a license, after a probation officer found a firearm under the mattress where J.E. had been sitting. J.E. argues that the juvenile court erred in denying his motion to suppress the firearm and adjudicating him delinquent for carrying a firearm without a license where J.E., as a minor, was ineligible to obtain a valid firearm license. After study, we find that the juvenile court erred in denying J.E.'s motion to suppress the firearm as the probation officer did not have a reasonable suspicion that J.E. had engaged in criminal activity or that J.E. was in violation of his probation. Accordingly, we reverse the juvenile court's commitment order and remand the case back to the juvenile court.

¶ 2 On February 10, 2005, Probation Officer Greg Willig went to a residence in the Beltzhoover section of Pittsburgh. Officer Willig was accompanied by Probation Officers Ray Bauer, Christine Lisko, and Robert Dassel along with Pittsburgh Police Officers J. Gagliardi and G. Scafeda. The officers went to the residence to serve an arrest warrant on J.E.'s brother ("Brother"), a juvenile. J.E.'s stepmother ("Stepmother") answered the door and informed the officers that Brother was not home but that J.E. was upstairs in his bedroom. Officer Willig told Stepmother that the officers would still need to search the house for Brother.

¶ 3 Officer Willig, along with two other probation officers, went upstairs and found J.E. in his third-floor bedroom sitting on the edge of his bed watching television. Officer Willig told J.E. to stand up and then conducted a pat-down search. During the pat-down, Officer Willig stated that J.E. was very nervous and shaking. This raised Officer Willig's suspicion that J.E. was hiding something. Officer Willig then lifted up the mattress on which J.E. had been sitting and found a gun.

¶ 4 On March 23, 2005, the Commonwealth filed a juvenile petition charging J.E. with one count each of possession of a firearm by a minor and possession of a firearm without a license. The Honorable Jill Rangos held a hearing on April 14, 2005. At the hearing, Officer Willig testified as to the search and seizure of the handgun. Officer Willig testified that he was the probation officer in charge of warrants for the county and that he was aware that J.E. was on probation. Based on prior experience, Officer Willig stated that when a juvenile is placed on probation he/she is required to sign a conditions of supervision form which includes a consent to a search of his/her person at any time. Officer Willig further testified that he routinely frisks juveniles who are on probation when they are present during the service of a warrant as a way to ensure the safety of the officers present. Officer Willig also stated that prior to the pat-down search, he had heard from an unknown informant that J.E. may have been involved in a shooting in Beltzhoover.

¶ 5 At the conclusion of Officer Willig's testimony, J.E. moved to suppress the evidence and for a directed verdict in his favor. The juvenile court denied both motions. Stepmother then testified that J.E. suffered from a shaking disease for which he had received medical treatment. No medical evidence was introduced and the juvenile court found this testimony to be unpersuasive. The juvenile court found that the Juvenile Act grants probation officers the right to search a juvenile on probation and that the probation officer had reasonable suspicion to search J.E. As a result, the juvenile court found that the Commonwealth had made a prima facie case for the charges of possession of a firearm by a minor and possession of a firearm without a license. The juvenile court found J.E. delinquent and in violation of his probation.

¶ 6 J.E. now appeals, raising the following questions for our review:

I. DID THE TRIAL COURT ERR IN DENYING J.E.'S MOTION TO SUPPRESS THE FIREARM WHERE THE GUN WAS FOUND AS A RESULT OF JUVENILE PROBATION OFFICERS DECIDING TO DO AN UNWARRANTED AND UNREASONABLE SEARCH OF J.E. AND HIS SURROUNDING AREA, AND WHERE SUCH A SEARCH VIOLATED J.E.'S PRIVACY RIGHTS AS GUARANTEED BY THE UNITED STATES AND PENNSYLVANIA CONSTITUTIONS?

II. DID THE TRIAL COURT ERR IN ADJUDICATING J.E. DELINQUENT OF THE CRIME OF POSSESSION WITHOUT A LICENSE WHERE IT IS UNREASONABLE TO EXPECT THAT A MINOR COULD EVER HAVE A VALID FIREARM LICENSE?

Brief for Appellant at 5.

Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the prosecution prevailed in the suppression court, we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 842 (2003) (citations omitted).

¶ 7 In support of his first argument, J.E. contends that the juvenile court erred in denying his motion to suppress the firearm. Brief for Appellant at 11. J.E. argues that the probation officers conducted an unwarranted and unreasonable search of J.E. and his surrounding area in violation of the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Brief for Appellant at 17-18. Specifically, J.E. argues that he was not acting suspiciously and that the officers had no justification to believe that he was violating the terms of his probation. Brief for Appellant at 20-21. J.E. also argues that the protective sweep conducted by the probation officers was overly broad and did not meet constitutional requirements. Brief for Appellant at 18.

¶ 8 Initially, we conclude that the protective sweep doctrine is not applicable to this case. A protective sweep is "a quick and limited search of [the] premises, incident to an arrest and conducted to protect the safety of police officers or others." Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (emphasis added). There are two levels of protective sweeps: (1) officers can, without probable cause or reasonable suspicion, look in closets and other spaces close to the place of arrest from which an attack could be launched and (2) officers can search for attackers further away from the place of arrest if they can sufficiently articulate specific facts that justify a reasonable fear for the safety of officers on the premises. See Commonwealth v. Taylor, 565 Pa. 140, 771 A.2d 1261, 1267 (2001). Here, the officers were in the residence based on a valid arrest warrant for Brother. However, the officers had not effectuated an arrest of Brother. As a proper protective sweep is based upon an initial arrest, we conclude the officers' search of the residence for Brother does not implicate the protective sweep doctrine. See Buie, 494 U.S. at 333, 110 S.Ct. 1093 (concluding that the Fourth Amendment allows arresting officers to conduct a protective sweep "to ensure their safety after, and while making, the arrest.") (emphasis added).

¶ 9 In the case at bar, the provisions of section 6304 of the Juvenile Act, which provides probations officers with the authority to search juveniles on probation, are controlling. Section 6304 states in relevant part:

(a.1) Authority to search. —

(1) Probation officers may search the person and property of children:

(i) under their supervision as delinquent children or pursuant to a consent decree in accordance with this section;

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(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.

(3) No violation of this section shall constitute an independent ground for suppression of evidence in any proceeding.

(4) (i) A personal search of a child may be conducted by any probation officer:

(A) If there is a reasonable suspicion to believe that the child possesses contraband or other evidence of violations of the conditions of supervision.

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(vi) The existence of reasonable suspicion to search shall be determined in accordance with constitutional search and seizure provisions as applied by judicial decision. In accordance with that case law, the following factors, where applicable, may be taken into account:

(A) The observations of officers.

(B) Information provided by others.

(C) The activities of the child.

(D) Information provided by the child.

(E) The experience of the probation officer with the child.

(F) The experience of probation officers in similar circumstances.

(G) The prior delinquent and supervisory history of the offender.

(H) The need to verify compliance with the conditions of supervision.

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(c) Definitions. — As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

"Personal search." A warrantless search of a child's person, including, but not limited to, the child's clothing and any personal property which is in the possession, within...