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HomeMy WebLinkAboutCP-21-CR-0800-2005 COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CARROL S. EWELL CP-21-CRIMINAL 0800 - 2005 IN RE: OPINION PURSUANT TO Pa. RA.P. 1925 Guido, J., December ,2005 The Commonwealth has filed this timely appeal from our order of September 1, 2005, granting the defendant's motion to suppress evidence. The Commonwealth alleges that we erred in concluding that the search of defendant's person was unlawful because his parole officer lacked "reasonable suspicion" of a parole violation. 1 It further contends that even if the officer lacked the requisite reasonable suspicion, suppression of the evidence obtained was not the appropriate remedy. 2 On June 28 and July 5, 2005 we held evidentiary hearings in connection with the defendant's motion to suppress evidence. Cumberland County Parole Officer Phil Baughman was the only witness called by the Commonwealth.3 Mr. Baughman had been the defendant's parole officer off and on for approximately 10 years.4 Over those years, virtually all of the defendant's problems had been drug related.S On February 4,2005, Parole Officer Baughman was supervising the defendant in connection with a probationary sentence that had been imposed several months earlier. 1 See "Matters Complained of on Appeal." 2See "Matters Complained of on Appeal." 3 We note that we found Mr. Baughman's testimony to be entirely credible and based our factual findings thereon. 4 Transcript of Proceedings, p. 20. 5 Transcript of Proceedings, p. 20. CP-21-CRIMINAL 0800 - 2005 While the defendant had admitted to some cocaine use in December of2004, Parole Officer Baughman decided not to revoke him because he was "doing relatively well". 6 He had stable housing, was gainfully employed, and was "in the process of trying to get at least some custody of his children back." 7 In the early morning hours of February 4,2005, Parole Officer Baughman and Carlisle Police Officer Dale were sitting in an unmarked car on Lincoln Street in Carlisle.8 Parole Officer Baughman offered the following explanation as to why they were there: Officer Dale had received numerous complaints of drug activity in the area of Lincoln Street. And specifically, they seemed to be concentrating in the morning hours. So we decided - - he decided it might be beneficial to set on that area and see what type of people were coming and going and if we recognized anybody.9 He went on to describe what happened: We got there around 7 a.m., and the first person - - we saw an individual walking down the street going west on Lincoln Street. He met up with who I thought to be Sid Ewell. . . . They talked a little while. I could not see the two of them because of a car. After a short period, they both started walking back east; and then they split up. It was at that point I said to Officer Dale that I'd like to go talk to Mr. Ewell at that point. 10 6 Transcript of Proceedings, p. 21. 7 Transcript of Proceedings, p. 21. 8 Parole Officer Baughman testified that he often worked with the Carlisle Police Department because his caseload involves "predominantly drug issues" in the Borough. In particular he explained his relationship with Officer Dale as follows: Officer Dale in addition to being a K-9 officer is - - works a lot of drug cases in Carlisle. Him and I have occasion to have knowledge of the same people; and it's a - - if he doesn't know someone whose actively involved in the drug trade locally I may and vice versa. So it's kind of a scratch each other's back as far as identification purposes. Transcript of Proceedings, p. 27. 9 Transcript of Proceedings, p. 22. 10 Transcript of Proceedings, p. 22. 2 CP-21-CRIMINAL 0800 - 2005 Thereafter, Mr. Baughman searched the defendant and recovered cocaine. 11 A parolee has limited Fourth Amendment rights because of a diminished expectation of privacy. Griffin v. Wisconsin, 483 U.S. 868, 107 S. Ct. 316497 L.Ed. 2d 709 (1987). Pennsylvania recognizes that "a parolee must expect to have a diminished right to privacy as a condition of being released from prison early". Commonwealth v. Williams, 547 PA 577,692 A.2d 1031at 1039. Therefore, a parolee is offered no greater protection under Article I Section 8 of the Pennsylvania Constitution than he is under the Fourth Amendment to the United States Constitution. Id Pursuant to his conditions of probation, the defendant had agreed to a warrantless search of his person "as deemed necessary for enforcement of (his) probation". 12 In the Williams case, the Court was faced with the identical question before this Court, i. e. what is the effect of a parolee signing a parole agreement giving his parole officer authority to conduct a warrantless search? The Williams Court held as follows: . . . the parolee's signing of a parole agreement giving his parole officer permission to conduct a warrant less search does not mean either that the parole officer can conduct a search at any time and for any reason or that the parolee relinquishes his Fourth Amendment right to be free from unreasonable searches. . . . A search will be deemed reasonable if the totality of the evidence demonstrates: (1) that the parole officer had a reasonable suspicion that the parolee had committed a parole violation, and (2) that the search was reasonably related to the parole officer's duty. 11 Even though the defendant voluntarily produced the cocaine in response to a question, we found that a search had occurred based upon the following testimony of the parole officer: Q. And tell me about the transaction where you got the cocaine. You simply asked him did he have anything on him that he shouldn't have? A. I believe that's the wording I used, correct. Q. Okay. And if he had said no, would you have searched him then? A. Correct. Q. Did you make that clear to him? Did he know that he was going to be searched at that point in time from your prior dealings with him? A. I would say it's safe to assume that, yes. But I don't know. (emphasis added) Transcript of Proceedings, p. 29. 12 Commonwealth Exhibit 2, paragraph 7. 3 CP-21-CRIMINAL 0800 - 2005 (emphasis added) 692 A.2d 1036.13 In the instant case, we were satisfied that the totality of the evidence fell far short of the "reasonable suspicion" standard needed to justify the search. It had been more than seven (7) weeks since the defendant had acknowledged using drugs. Because he had been doing well otherwise, Parole Officer Baughman had decided not to revoke his probation. Further, there was no evidence to suggest any other probation violations in the intervening weeks. On the morning of the search, Parole Officer Baughman was aware that the defendant lived in a house on Lincoln Street.14 He also knew that the defendant was working the third shift and would have been on his way home from work at the time he was spotted talking with the unknown man. 15 Finally, there was nothing particularly suspicious about the encounter between the defendant and that man. 16 The Commonwealth also contends that the suppression of evidence was not the appropriate response to the unlawful search. We note that no such issue was ever raised before us. However, in its "Brief in Support of Matters Complained of on Appeal" the Commonwealth points to the following language in the 1995 statute: (c) No violation of this section shall constitute an independent ground for suppression of evidence in any probation and parole or criminal proceeding. 13 In November of 1995 the Pennsylvania Legislature enacted legislation formalizing the "reasonable suspicion" standard. Searches by county probation and parole officers d (1) A personal search of an offender may be conducted by any officer: (i) if there is a reasonable suspicion to believe that the offender possesses contraband or other evidence of violations of the conditions of supervision; 61 P.S. ~ 331.27b (d) (1) i. This legislation was passed after Williams arose but before it was decided. 14 Transcript of Proceedings, p. 27. 15 Transcript of Proceedings, p. 26. 16 Parole Officer Baughman candidly admitted that his view of the encounter was blocked by a parked car which prevented him from seeing "any transaction" between the two. Transcript of Proceedings, p. 28. 4 CP-21-CRIMINAL 0800 - 2005 61 P.S. S 331.27 (b)(c). However, it ignores the preceding section which provides that the statute shall not be construed "to permit searches and seizures in violation of the Constitution of the United States or Section 8 Article I of the Constitution of Pennsylvania" 61 P.S. S 331.27 (b)(b). A warrantless search without reasonable suspicion amounts to such a violation. See Williams, supra. Therefore, the only appropriate remedy was the suppression of the evidence obtained thereby. DATE Edward E. Guido, J. Jonathan R Birbeck, Esquire For the Commonwealth Linda S. Hollinger, Esquire F or the Defendant :sld 5