In re J.E., 12 WAP 2007.

937 A.2d 421

In the Interest of J.E., a minor,

Appeal of Commonwealth of Pennsylvania.

No. 12 WAP 2007.

Supreme Court of Pennsylvania.

Argued September 10, 2007.

Decided December 27, 2007.

Margaret B. Ivory, Office of the Dist. Atty., for the Com. of PA, appellant.

Carrie Lynn Allman, for J.E., a minor, appellee.

Peter Rosalsky, Defender Ass'n of Philadelphia, for Defender Ass'n of Philadelphia, appellee amicus curiae.

BEFORE: CAPPY, C.J., CASTILLE, SAYLOR, EAKIN, BAER, BALDWIN and FITZGERALD, JJ.

OPINION

Justice FITZGERALD.

We decide whether, under the circumstances of this case, a juvenile probation officer's warrantless search of a probationer's bedroom, which resulted in the seizure of a firearm from beneath a mattress, must be supported by a reasonable suspicion that the juvenile possessed contraband or was in violation of the conditions of his supervision. We hold that reasonable suspicion is indeed required in such a case, that it was lacking here, and that the search conducted was therefore improper. We affirm the Superior Court's decision reversing the adjudication and remanding the matter to the trial court.

Background

At the time of these events, appellee J.E. was on juvenile probation. On February 10, 2005, Probation Officer Greg Willig, along with several other probation and police officers, went to J.E.'s residence in Pittsburgh, armed with an arrest warrant for J.E.'s step-brother (Brother), who was also on juvenile probation and had failed to appear for a court hearing. The officers did not go to the residence for any reason involving J.E. Upon arriving at the residence, J.E.'s stepmother ("Stepmother") answered the door and informed the officers that Brother was not at home, but that J.E. was upstairs in his bedroom. Probation Officer Willig told Stepmother that the officers would still need to search the house for Brother.

Officer Willig, with two other probation officers, went upstairs and found J.E. in his third-floor bedroom, sitting on a bed, watching television. Probation Officer Willig directed J.E. to stand up, and then conducted a pat-down search, which did not result in any seizure. J.E. appeared to be very nervous and was shaking during the pat-down. Officer Willig believed J.E. was hiding something, so he lifted up the mattress of the bed on which J.E. had been sitting and found a gun, which he seized.

Following the filing of weapons charges, J.E. sought suppression of the gun. At a hearing on the motion, the Commonwealth and defense presented the following testimony. Officer Willig testified that he was the probation officer in charge of warrants for the county, and knew that J.E. was on juvenile probation, but that he had had no prior dealing with either J.E. or Brother. He testified that based on his experience, he knew that probationers are required to sign a Conditions of Probation form, which includes consent to a search of the probationer's person at any time. Officer Willig also testified that he routinely conducted "frisks" of juvenile probationers when they are present during the service of a warrant, to ensure the safety of the officers present. He stated that the officers "were going to search him ... [to] make sure he is following the rules of supervision and conditions of probation and for our safety." N.T. 4/14/05, 7.

Officer Willig testified that, based on his experience, the fact J.E. was shaking during the pat-down frisk was "a pretty good indication that somebody is trying to hide something." Officer Willig further testified that he had heard from an "informant" that J.E. may have been involved in a shooting. Officer Willig could not articulate whether this information was received from a known or anonymous informant, and he stated, "I don't recall the source." He confirmed that to his knowledge, J.E. was not in violation of his probation at the time of the search.

Probation Officer Jon Marzoch provided the trial court with a signed copy of the Condition of Supervision form executed by J.E., which included the condition that the juvenile must submit to a search by the probation officer as directed.

The defense presented evidence from Stepmother that J.E. had a medical condition which caused him to shake all the time. She testified, "He shakes if he is yelled at." N.T. 4/14/05, 36. The trial court found Stepmother's testimony to be unpersuasive, noting that she was unable to provide the court with a name for the medical condition, or any medical records. The court also found that there was no evidence that Officer Willig had any knowledge of J.E.'s purported condition when he made his decision to conduct the search and seizure.

Ultimately, the trial court denied J.E.'s motion to suppress the gun, adjudicated him delinquent for Possession of a Firearm by a Minor (18 Pa.C.S. § 6110.1a) and Possession of a Firearm Without a License (18 Pa.C.S. § 6106), and found him to be in violation of the terms of his juvenile probation. The court committed J.E. to the Youth Forestry Camp on May 12, 2005 and the matter was listed for review on October 13, 2005.

On appeal, a divided panel of the Superior Court¹ held the trial court had erred in denying the motion to suppress the gun as the probation officer lacked reasonable suspicion that J.E. had engaged in criminal activity, or was in violation of his probation. Superior Court reversed the trial court's commitment order and remanded the matter. In the Interest of J.E., 907 A.2d 1114 (Pa.Super.2006). The Commonwealth sought review by this court pursuant to 42 Pa.C.S. § 724(a), and we granted the petition for allowance of appeal.

The Commonwealth asserts that the Superior Court erred in determining that the search was not supported by reasonable suspicion. The Commonwealth further argues that the Juvenile Act, 42 Pa.C.S. § 6304, which empowers probation officers to conduct searches, requires that suppression be denied. Finally, the Commonwealth asserts that the Superior Court erred in holding that a probationer is afforded protection in these circumstances, under either the Federal Constitution, or the Constitution of this Commonwealth. We begin our analysis with the language of the relevant statute, which provides as follows:

(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;

* * *

(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 reasonable suspicion to believe that the child possesses contraband or other evidence of violations of the conditions of supervision.

* * *

(ii) A property search may be conducted by any probation officer if there is reasonable suspicion to believe that the real or other property in the possession of or under the control of the child contains contraband or other evidence of violations of the conditions of supervision.

* * *

(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 observation 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.

42 Pa.C.S. § 6304(a.1)(1), (2), (3), and (4).

Discussion

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. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 842 (2003). Where the prosecution prevailed in the suppression court, we may consider only the Commonwealth's evidence and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Id. 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. Id.

Initially, we note that this Court has previously held that probationers and parolees have limited Fourth Amendment rights because of a diminished expectation of privacy. Commonwealth v. Williams, 547 Pa. 577, 692 A.2d 1031, 1035 (1997) (citing Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)). Furthermore, in Williams, we held that even where a parolee signs a consent form acknowledging that parole officers could conduct a warrantless search of his premises, such consent applied only to a search that was reasonable, i.e., one for which the parole officer had a reasonable suspicion that the parolee had committed a parole violation and one that was reasonably related to the parole officer's duties. Williams, 692 A.2d at 1036-37.

The Commonwealth first argues that Superior Court erred in reversing the suppression order because the trial court properly found that Officer Willig's search was supported by reasonable suspicion. In any event, the Commonwealth argues, the search was proper because it was conducted pursuant to the "protective sweep" doctrine, which allows for limited searches to ensure the safety of the arresting officers. Appellant's Brief at 16-17 (citing ...