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COMMONWEALTH v. BROWN (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
BROWN, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Mercer County, March T., 1975, No. 35, in case of Commonwealth of Pennsylvania v. Samuel Brown.

COUNSEL

Nicholas S. Kladitis, Assistant Public Defender, for appellant.

Robert F. Banks, First Assistant District Attorney, with him Joseph J. Nelson, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Price, J. Jacobs and Van der Voort, JJ., join in this dissenting opinion.

Author: Hoffman

[ 240 Pa. Super. Page 192]

Appellant, a parolee at the time of his arrest, contends that his arrest and the search of his home were illegal because they were effectuated without a warrant.*fn1 The Commonwealth concedes that a parolee is entitled to some Fourth Amendment protections, but argues that he should not be entitled to the protection afforded by a warrant. Thus, we must decide the extent of a parolee's Fourth Amendment protection, a question of first impression in Pennsylvania.

[ 240 Pa. Super. Page 193]

On January 17, 1975, appellant was arrested in connection with a November 3 or 4, 1974 burglary of Grafo Colloids Corporation, located in Sharon, Mercer County. Appellant moved to suppress the evidence seized during a search of his home conducted at the time of his arrest. On April 8, 1975, the lower court denied that motion. On April 24, 1975, the appellant was convicted of burglary and theft and sentenced to a term of imprisonment of 5 to 10 years. This appeal followed.

The operative facts were set forth by the court in its opinion accompanying the order denying the motion to suppress: In November, 1974, Richard Carr, Superintendent of Manufacturing of Grafo Colloids Corporation, reported a burglary that occurred between 10:30 a.m., on November 3, and 8:00 a.m., on November 4. The proceeds of the burglary included a television set, a stereo receiver, speakers, and stereo tapes.

Appellant, a parolee, was an employee of Grafo Colloids from September 30, 1974, to January 17, 1975. Clyde Little, an agent of the Board of Probation and Parole, had been assigned to supervise the appellant. Under appellant's parole contract, he was subject to close supervision. Agent Little was to see appellant at least twice a month, but was empowered to visit him at home whenever the agent believed necessary.

In early January, 1975, a counselor at a local community treatment center told the parole agent that appellant had the stolen goods in his home. During his next visit, the agent saw a television set and a stereo system. After he received a specific description of the stolen items from a Grafo Colloids' employee, the agent informed Mr. Carr that he believed that appellant had committed the burglary. Mr. Carr advised the agent that he wanted police to take action against appellant.

On January 17, 1975, the agent, Mr. Carr, and two Sharon police officers went to appellant's home. Apparently, the agent asked the police officers to accompany

[ 240 Pa. Super. Page 194]

    him to assist in arresting the appellant. A woman admitted the four men into the apartment. At that time, the parole agent advised the appellant of the purpose for the visit. Mr. Carr immediately identified the stereo and television set. Appellant denied that the items were Carr's and stated that he had purchased them "downtown." Thereafter, the agent arrested appellant. The parole agent effected the search and arrest without a warrant.

During this century, legislatures and courts have increasingly used parole to relieve overcrowding of limited prison facilities and to effectuate prevailing theories of rehabilitation. See Comment, The Parole System, 120 U. Pa.L.Rev. 282 (1971); Note, The Parole Revocation in the Federal System, 56 Geo.L.J. 705 (1968); Note, Parole: A Critique of Its Legal Foundations and Conditions, 38 N.Y.U.L.Rev. 702, 705-707 (1963). As stated by the United States Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 478 (1972), "[t]he essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence." Because parolees are still subject to an extant term of imprisonment and are the focus of ...


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