Commonwealth vs. Ruben J. Rivera-Medina No. CP-38-CR-0002019-2014

Criminal Action-Law-Omnibus Pretrial Motion-Authority of Parole Officer-Warrantless Search of Residence-Non-Parolee Living in Residence-Reasonable Suspicion-Joint or Exclusive Control-Bedrooms-Exclusive Occupation of Non-parolee

Defendant was charged with violations of the Controlled Substance, Drug Device and Cosmetic Act after contraband was located in the basement of the residence in which he was living when the residence was searched by Lebanon County Probation Officers, who were supervising parole of another individual living in the residence. Defendant filed an Omnibus Pretrial Motion seeking to suppress the contraband located during the search.

1. An individual on probation or parole is not entitled to the same rights as an unconvicted citizen. A parolee is subject to warrantless searches that he consented to endure as a condition of his or her supervision or release.

2. Title 42 Pa.C.S. § 9912(d)(2) provides that a property search may be conducted by a parole officer if there is reasonable suspicion to believe that the real or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision. Reasonable suspicion may be based upon factors including information provided by others, the activities of the offender, the experience of the officers with the offender and the need to verify compliance with the conditions of supervision § 9912(d)(6).

3. At no point is a probation officer permitted to serve as a “stalking horse” for police who desire to investigate criminal activity at a probationer’s residence.

4. The United States Supreme Court has recognized that the need of a state to enforce supervision rules sometimes even can supersede the privacy interests of others affected by the search.

5. In Pennsylvania, a parole officer may conduct a warrantless search based upon reasonable suspicion of all areas of a parolee’s residence that are under his or her exclusive or joint control, which would extend to all common areas of the residence. A parole officer may not conduct a warrantless search of areas inside a parolee’s residence that exclusively are under the control of someone other than the parolee, including bedrooms occupied exclusively by non-parolees. To discern the areas of the residence that are under joint or exclusive control of a parolee, the parole agent is permitted to conduct and to rely upon preliminary inquiry with residents.

6. The parole officer in this case was not justified in extending his warrantless search into the basement of the residence when only Defendant and not the parolee slept in the basement, a sheet had been hung to designate Defendant’s area of occupation where the contraband was located, the contraband was located inside of a dresser of the type commonly used to store clothes and other personal belongings and Defendant was not charged with conspiring with the parolee with regard to the contraband, thereby inferring the Commonwealth’s belief that the contraband belonged exclusively to Defendant and not the parolee who was the subject of the search. As such, the basement that was occupied by Defendant was more like a bedroom to which the non-parolee had an expectation of privacy than it was a like a common area to which the parolee and others had equal and joint access, necessitating suppression of the evidence located within that area.

L.C.C.C.P. No. CP-38-CR-0002019-2014, Opinion by Bradford H. Charles, Judge, January 19, 2016.

Nicole Eisenhart, Esquire, for the Commonwealth

Bret M. Wiest, Esquire, for Defendant

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA CRIMINAL DIVISION NO. CP-38-CR-2019-2014

COMMONWEALTH OF PENNSYLVANIA

vs.

RUBEN J. RIVERA-MEDINA

ORDER OF COURT

AND NOW, this 19^th day of January, 2016, upon consideration of the Defendant’s Motion to Suppress Evidence and in accordance with the attached Opinion, the Defendant’s Motion is granted. Evidence of the heroin found in the Defendant’s dresser is suppressed.

The Defendant is directed to appear at the Criminal Call of the List scheduled for February 16, 2016 at 8:30 a.m. in the designated Courtroom. He is also directed to appear for the first day of Criminal Trials scheduled to commence on March 7, 2016 at 8:30 a.m. in the designated Courtroom.

BY THE COURT:

BRADFORD H. CHARLES, J.

APPEARANCES

Nicole Eisenhart, Esquire For Commonwealth of Pennsylvania

DISTRICT ATTORNEY’S OFFICE

Bret M. Wiest, Esquire For Ruben J. Rivera-Medina

BUZGON DAVIS LAW OFFICES

OPINION BY CHARLES, J., January 19, 2016

This case presents the question of whether a parole officer can search all areas of a parolee’s house when he has reasonable grounds to suspect a violation of parole. In this case, Ruben J. Rivera-Medina (hereafter “DEFENDANT”) slept in the basement of a residence where a parolee stayed in the attic. When parole officers developed reasonable suspicion with respect to the parolee, they searched all areas of his house, including the area “occupied”` by DEFENDANT. In the area “occupied” by DEFENDANT, the parole officer found drugs and other contraband. DEFENDANT now argues that parole authorities exceeded their authority by searching “his” area. Based upon the unique facts of this case, we will grant the Defendant’s Motion to Suppress.

I. FACTS

In November of 2014, the Lebanon County Probation Department was supervising Efrain Esquilin-Lebron. (N.T. 4-5). When Mr. Esquilin-Lebron’s supervision commenced, he resided in Myerstown, Pennsylvania. (N.T. 6). In August or September of 2014, Mr. Esquilin-Lebron moved to 426 Church Street in the City of Lebanon. (N.T. 6, 17). DEFENDANT also considered 426 Church Street to be his residence.

The 426 Church Street property is a row home containing four bedrooms. (N.T. 27). The building is comprised of two floors, a basement and an attic. (N.T. 28). The house was the residence of numerous individuals, including both Mr. Esquilin-Lebron and DEFENDANT. At no time did parole authorities obtain permission from DEFENDANT for Mr. Esquilin-Lebron to live at 426 Church Street.

Information was related to the Lebanon County Probation Department about drug activity being conducted at 426 Church Street. As a result, the Probation Department undertook to perform a search at 426 Church Street. (N.T. 12-13). At the time of the Probation Officer’s arrival at 426 Church Street, numerous individuals were present. (N.T. 13). At the time, the Probation Officers did not know precisely how many individuals resided at the property. (N.T. 18). None of the individuals present were able to communicate in English except for DEFENDANT. (N.T. 19-20).

Mr. Esquilin-Lebron’s bedroom was located in the attic of 426 Church Street. (N.T. 20). The area “occupied” by DEFENDANT was located in the basement. (N.T. 22-23). However, the basement was also used as a common storage area for all residents of the residence. (N.T. 22-23). The basement could be accessed from an outside entrance and also from an interior door that led to the first floor. (N.T. 21).

Officer James Doty of the Lebanon Probation Department testified that when searches are conducted of a parolee’s residence, those searches are not limited to the bedrooms of the parolee. Officer Doty testified that all areas of a structure are searched “because a probationer ‘could always stash contraband, drugs, anything would be considered a violation of their supervision in another person’s [room] or in another area of the house’.” (N.T. 15). “Like I said if there is anywhere that we believe an offender who resides at that address has access to whether it be a garage, attic, a basement, a parent’s bedroom, a brother’s bedroom, we are going to search that area.” (N.T. 15).

Officer Doty and his fellow officers searched the basement because they felt it was necessary to do so in order to investigate the possibility that Mr. Esquilin-Lebron violated the terms of his parole. (N.T. 16, 27). Officer Doty considered the basement area to be one that could be accessed by DEFENDANT; Officer Doty emphasized that when an offender has access to an area of a structure, that area would be searched. (N.T. 30-31).

Parole officers located drugs and other contraband in the area of 426 Church Street that was “occupied” by DEFENDANT. Police were called. After an investigation was undertaken, three charges under Pennsylvania’s Drug, Device and Cosmetic Act were lodged against DEFENDANT.

On August 26, 2015, DEFENDANT filed an Omnibus Pretrial Motion to Suppress Evidence and Dismiss Charges. Based on the testimony presented, this Court rendered an immediate decision declaring that the Probation Department possessed reasonable suspicion to conduct a search of Mr. Esquilin-Lebron’s residence. However, we deferred a decision regarding the scope of the search. We asked the parties to brief the question of whether “the Probation Office has the ability to conduct an intrusive search into all rooms of a jointly possessed residence simply because one occupant of the residence is on probation and gave the Probation Office reasonable grounds to conduct an inquiry.” (Court Order of Oct. 21, 2015). Both parties have filed Briefs regarding the issue that we articulated. We issue this decision to address the parties’ arguments.

II. DISCUSSION

Someone who is on probation or parole “is not entitled to the same rights as an unconvicted citizen.” Person v. Pennsylvania Board of Probation and Parole, 701 A.2d 1381, 1383 (Pa. Cmwlth. 1997), citing Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 2599 (1972). In particular, a parolee is subject to warrantless searches that he consented to endure as a condition of his supervision or release. Commonwealth v. Appleby, 856 A.2d 191 (Pa.Super. 2004). As our Superior Court has stated: “Essentially, parolees agree to endure warrantless searches based only on reasonable suspicion in exchange for their early release from prison.” Commonwealth v. Curry, 900 A.2d 390, 394 (Pa.Super. 2006).

Pennsylvania’s General Assembly has codified the circumstances under which a parole/probation officer can conduct a search of a parolee. Pertinent to this case is 42 Pa.C.S.A. § 9912(d)(2), which reads:

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

The statute further provides that “reasonable suspicion” may be based upon numerous factors, including “information provided by others,” “the activities of the offender,” “the experience of the officers with the offender” and “the need to verify compliance with the conditions of supervision.” See 42 Pa.C.S.A. § 9912(d)(6). At no point can a probation officer serve as a “stalking horse” for police who desire to investigate criminality at a probationer’s residence. See Commonwealth v. Pickron, 634 A.2d 1093 (Pa. 1993).

Our nation’s highest court has recognized the importance of warrantless parole searches. In Samson v. California, 547 U.S. 843, 126 S.Ct. 2193 (2006), the United States Supreme Court emphasized the legitimacy of a state’s desire to investigate and discover violations of parole supervision. The Court stated:

This court has repeatedly acknowledged that a state has an “overwhelming interest” in supervising parolees because ‘parolees . . . are more likely to commit future criminal offenses.’ Similarly, this court has repeatedly acknowledged that a state’s interest in reducing recidivism and thereby promoting reintegration and positive citizenship among probationers and parolees warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.

Id. at 853 (citations omitted). The Supreme Court recognized that the need of a state to enforce supervision rules can even sometimes supersede privacy interests of others affected by the search: “Petitioner’s concern that California’s suspicionless search law frustrates reintegration efforts by permitting intrusions into the privacy interest of third parties is also unavailing . . . ” Id. at 856-57.

Much to our surprise, there is a paucity of decisional precedent governing the scope of a probation officer’s ability to search a residence. Neither party has presented any Pennsylvania appellate precedent that would either permit or prohibit the type of comprehensive search that was conducted by Officer Doty and his colleagues.

Although not dispositive of the issue before us, we did locate one Pennsylvania case that is pertinent to our analysis. In Commonwealth v. Smith, 85 A.2d 530 (Pa.Super. 2014), parole agents visited the residence of a parolee “for the purpose of monitoring his compliance for the conditions of his parole.” During the visit, the officers smelled the odor of marijuana. The Defendant argued that the visit of the parole officers constituted a “search” for which they did not have any reasonable suspicion or probable cause. The Superior Court rejected this argument and declared that a parole agent’s home visit was not a search within the meaning of the Fourth Amendment. If during a non-invasive visit the parole officer smells or observes something in plain view that gives rise to reasonable suspicion of a violation, the officers can then lawfully search the residence. In Smith, the agent found one and three-quarter pounds of marijuana, two boxes of live ammunition, a large amount of money and a digital scale hidden in the basement under the basement stairs. The Superior Court upheld the seizure of these items.

While pertinent, Smith is not dispositive of the issue before us. Accordingly, we widened our legal research beyond the borders of Pennsylvania. In doing so, we learned that most Courts that have addressed the topic have extended a parole agent’s warrantless search authority to include common areas in an apartment building and areas under the joint control of a defendant. In State v. Johnson, 748 P.2d 1069 (Utah 1987), a parolee and his mother resided in the same apartment. A parole agent conducted a warrantless search of the residence and found evidence of a burglary. The Defendant filed a Motion to Suppress based upon the premise that a warrantless search could not be lawfully conducted without his mother’s consent. The Utah Supreme Court rejected this argument and stated:

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 non-parolees living with parolees were not reduced, a parolee could avoid all warrantless parole searches by living with a non-parolee and asserting the non-parolee’s constitutional rights, and thus emasculate one significant feature of the parole system.

Id. at 1073. The Court went further to address a parole officer’s ability to search a “co-tenancy.”

When a parolee lives with a non-parolee, courts generally hold that a co-tenancy restricts, to some degree, the extent of a permissible consent search. The scope of consent impliedly given by a co-tenant is limited to those parts of the premise where the tenants possess ‘common authority over or other sufficient relationship to the premises or effects sought to be inspected.’ . . . Consent was not required [from the parolee’s mother] because the items confiscated were found in a hall closet, a common area, and the search was terminated after they were discovered. The search did not extend into those parts of the residence that were under [the mother’s] sole control or possess and, therefore, did not unlawfully invade her right of privacy. Since the search was pursuant to a legitimate concern that the defendant has violated his parole and was based on a reasonable articulable suspicion, the search was lawful.

Id. at 1074. See also, U.S. v. Cantley, 130 F.3d 1371 (10^th Cir. 1997); U.S. v. Crew, 345 F.Supp.2d, 1264 (D.C. Utah 2004); U.S. v. Lewis, 71 F.3d 358 (10^th Cir. 1995).

Also pertinent is a case from Wisconsin. In State v. West, 517 N.W.2d 482 (Wisc. 2d 1994), a warrantless search was conducted of a non-approved residence where a parolee was staying. An enormous amount of stolen merchandise was located at that non-approved residence. The parolee’s female companion was the tenant of the residence and objected to the search by authorities. She argued that the state’s ability to conduct warrantless searches with respect to parolees should not be expanded to include searches that could adversely affect non-parolees. The Wisconsin Supreme Court disagreed. The Court reasoned:

Where a non-parolee living with a parolee allowed an automatic objection to a parole search directed against the parolee, it would effectively thwart all parole searches. In the words of the Supreme Court of Utah, this would allow a parolee to ‘avoid all warrantless parole searches by living with a non-parolee and asserting the non-parolee’s constitutional rights.’ . . . that expectation . . . would emasculate the special needs of Wisconsin’s probation and parole system.

Id. at 82.

As a result of our research into decisional precedent from other jurisdictions, we conclude that the weight of authority permits searches by a parole officer of areas in a residence that are under the direct or joint control of a parolee. This would include so-called “common areas” that can be accessed not only by the parolee, but also by others. With the above being said, our search has revealed no cases whatsoever that would permit a parole officer to search areas of a residence, such as bedrooms, that are under the exclusive control of someone else.

Some degree of tension exists between the privacy rights of non-parolee co-residents and the legitimate need for parole agents to be able to conduct comprehensive searches when they have reasonable suspicion to believe that a violation of parole has occurred. The right of a citizen to be protected from government searches unsupported by probable cause is constitutionally protected. On the other hand, we are aware that if we were to limit a parole agent’s search ability to only the parolee’s bedroom, that could cause parolees to hide contraband in other rooms of their residence. Unduly restricting the scope of a parole agent’s search would incentivize possession of contraband by parolees who will come to realize that all they need do to avoid detection would be to store contraband in a basement, a hall closet, a kitchen or other areas outside his/her bedroom. Such a practice would have a chilling impact on a parole officer’s ability to supervise a parolee.

In contemplating where a line should be drawn with respect to parole searches, we envisioned several scenarios and rhetorically asked ourselves whether a search in each could be viewed as objectively reasonable. For example, we contemplated a situation involving a young parolee who returned to live in his parents’ home together with a sibling. If a parole officer became aware that the parolee was smoking marijuana, would that give the officer carte blanche to enter the bedroom of the parolee’s mother or sister in order to search through an underwear draw? We think not. On the other hand, we can also envision a situation where a parolee lives in a structure where each resident has a bedroom but all enjoy access to a kitchen, living room, bathroom and basement storage. In that scenario, would it be reasonable for a parole officer to search all of the common areas to which the Defendant enjoys joint access? We would answer this question in the affirmative.

As we have contemplated possible scenarios and as we have evaluated the decisional precedent identified during our expanded nationwide legal research, we have reached the following legal conclusions:

(1) A Pennsylvania parole officer may conduct a warrantless search based upon reasonable suspicion of all areas of a parolee’s residence that are under his exclusive or joint control. This would extend to a search of all “common areas” of an apartment or residence.

(2) A parole officer may not conduct a warrantless search of areas inside a parolee’s residence that are exclusively under the control of someone other than the parolee. These will include bedrooms occupied exclusively by non-parolees.

(3) To discern which areas of a residence are under the joint or exclusive control of a parolee, the parole agent will be permitted to conduct and rely upon a preliminary inquiry with residents.

Unfortunately, reaching the above conclusions of law does not end our analysis or inquiry. In this case, the contraband found by parole authorities was located in a basement that served a dual purpose; it was DEFENDANT’s living space and it was also a common storage area. Thus, the facts of this case do not fit neatly into the legal template we articulated above.

Officer Doty testified that the basement was a fairly large-size room that could be accessed from either the exterior of the residence or from an interior staircase. (N.T. 20-21). Located in a portion of the basement was a bed, dresser and television stand. (N.T. 21). This area was not “walled off” from the remainder of the basement. (N.T. 22). However, a sheet was hung to separate the location of the bed from other areas of the basement. (N.T. 22-23).

Under questioning from the Court, Officer Doty testified that when he arrived to conduct his search, there were at least “five or six” people inside 426 Church Street. (N.T. 28). Four areas of the house could be used as sleeping quarters. (N.T. 28). However, there were neither separate entrances nor separate mailboxes for each resident. (N.T. 28). Only one kitchen and one living room served the structure. (N.T. 29). Moreover, the interior door leading to the basement area was open and unlocked. (N.T. 29).

This case presents a quintessential “close call.” On the one hand, we recognize that at least a portion of the basement of 426 Church Street could be considered a “common area” to which Mr. Esquilin-Lebron could have had access. On the other hand, a sheet was hung to designate DEFENDANT’s area of occupation, and we can think of no reason why a sheet would have been hung other than to ensure the DEFENDANT’s privacy. Moreover, most of the drugs were found inside a dresser of the type commonly used by people to store clothing and other personal belongings.

After completing an investigation, police charged DEFENDANT with crimes pertaining to the drugs found in the basement dresser. Significantly, DEFENDANT was not charged with conspiring with Mr. Esquilin-Lebron. From this, we infer that the Commonwealth believes that the drugs in the dresser belonged exclusively to DEFENDANT and not to the parolee who was the subject of Officer Doty’s search. This being the case, it could be rhetorically asked: “What did Officer Doty know about Mr. Esquilin-Lebron’s access to the basement and its contents that police have not been able to detect?” Unfortunately, the record provides no good answer to this question.

While we have vacillated about the fact-pattern presented in this case, in the end we have reached the conclusion that the area where the drugs were found was under the exclusive control of DEFENDANT and not Mr. Esquilin-Lebron. Stated differently, we find that the basement area “occupied” by DEFENDANT was more like a bedroom to which a non-parolee had an expectation of privacy than it was like a common area to which a parolee and others had equal and joint access. Having reached this conclusion, we are constrained to conclude that Officer Doty was not justified in extending his warrantless search into DEFENDANT’s living space.

III. CONCLUSION

While parolees surrender certain rights by virtue of their status, and while co-residents of a parolee may also on occasion endure somewhat diminished privacy rights, we have found no statutory or decisional authority to support the premise that parole officers can conduct warrantless searches of non-parolees’ private belongings. While we are not at all troubled by the notion that a parole officer can search a parolee’s living space and all other “common areas” of a residence, we simply cannot endorse the type of comprehensive search that was conducted by Officer Doty in this case. Accordingly, based on the record now before us, we will grant DEFENDANT’s Motion for Suppression.

1) Immediately following the suppression hearing, we determined that the Probation Department possessed reasonable suspicion to investigate whether their parolee was a part of this drug activity. (See Court Order of October 21, 2015).

2) For the sake of grammatical ease, we will hereafter refer to supervised individuals as “parolees” regardless of whether their supervision stemmed from a probation or parole order.

3) While this issue is not now before us, we can certainly perceive an instance where residents would not cooperate with the inquiry of a parole agent. If that occurs, the scope of the parole agent’s search would, of necessity, need to be more rather than less expansive.

4) Inside the dresser located in the bedroom, Officer Doty found two hundred packets of heroin. (N.T. 15).

5) In reaching our conclusion, we have also considered the fact that Mr. Esquilin-Lebron occupied the attic, which is about as far away from DEFENDANT’s occupied space as was possible given the layout of 426 Church Street. We accept as an axiom that people in control of 200 bags of heroin will not generally store such a valued commodity in a dresser located three stories below in someone else’s living space.

6) As we reach this conclusion, we lament the fact that Officer Doty did not conduct a more detailed inquiry with the residents of 426 Church Street with respect to what was and what was not considered to be “common areas.” Had Officer Doty been advised that Mr. Esquilin-Lebron used the area of the basement part by the sheet for storage purposes, then we certainly would have approved the scope of Officer Doty’s search.