Appeal from the Order Entered April 21, 2011 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005824-2010
The opinion of the court was delivered by: Gantman, J.:
BEFORE: GANTMAN, J., ALLEN, J., and MUNDY, J.
Appellant, the Commonwealth of Pennsylvania, appeals from the order entered in the Dauphin County Court of Common Pleas, which granted the motion of Appellee, Laquinn Anthony Chambers, to suppress evidence obtained as the result of a stop, seizure, and arrest for multiple drug offenses. For the following reasons, we hold the probation officers lacked the requisite reasonable suspicion to seize Appellee under the facts and circumstances of this case. Therefore, the court properly granted Appellee's suppression motion. Accordingly, we affirm.
The relevant facts and procedural history of this case are as follows. On or about 8:00 P.M. on October 19, 2010, three Dauphin County probation officers were driving in an unmarked, black sport utility vehicle near the 1900 block of Market Street in Harrisburg, Pennsylvania. By chance, Appellee walked alone past their vehicle, in the opposite direction. Probation Officer Tim Kinsinger recognized Appellee as a former probationer whom he had previously supervised and mentioned this fact to Officer Lawrence Muza. Officer Muza stopped the vehicle. Officer Kinsinger believed Appellee was currently on probation and tried to exit from the back passenger seat of the vehicle to speak to Appellee. When Officer Kinsinger could not open the back door of the vehicle, Officer Muza exited it to question Appellee. None of the probation officers in the vehicle were supervising Appellee's current probation, and Officer Muza had not even met Appellee before this interaction.
By the time Officer Muza exited the vehicle, Appellee had already walked past it and was approximately at the rear fender. Officer Muza called out Appellee's name and identified himself as a probation officer. Appellee turned around and gave what Officer Muza described as a "deer in headlights" look. Appellee shifted his feet and began backing away from Officer Muza. Officer Muza then shouted at Appellee, "Do not run." Appellee then turned as if to run. In response, Officer Muza drew his Taser, shouted "Taser, Taser" and deployed the device on Appellee. As soon as the officers gained control of Appellee, they conducted a search of Appellee's person and initially recovered nothing. In an alley near where the incident occurred, they found about $898.00 in cash. After taking Appellee into custody, the officers recovered from Appellee's mouth a Ziploc baggie containing a small amount of crack cocaine. The Commonwealth charged Appellee with possession with intent to deliver a controlled substance, tampering with physical evidence, and unlawful possession of drug paraphernalia.
On February 22, 2011, Appellee filed a motion to suppress all evidence obtained as a result of the two searches on the ground that the original seizure was unlawful and in violation of Appellee's constitutional rights, as it lacked the requisite reasonable suspicion. The court conducted a hearing on the matter on March 29, 2011. Defense counsel then argued, inter alia, that as soon as Officer Muza said, "Do not run," he restricted Appellee's movement, which was a seizure without reasonable suspicion. Counsel emphasized Officer Muza lacked reasonable suspicion to believe Appellee was in violation of his probation, and the command was constitutionally flawed. Officer Muza testified he had no personal experience with Appellee, did not know who Appellee's current probation supervisor was, had no idea if Appellee was in violation of his supervision, and made no calls to inquire. The defense concluded these factual circumstances did not support reasonable suspicion for the seizure. (See N.T. Suppression Hearing, 3/29/11, at 53-57.)
The Commonwealth took the position that random field contacts with probationers were acceptable under Pennsylvania law. Once Officer Muza identified himself as a probation officer and called Appellee by name, Appellee was compelled under his probation rules to stop and answer whatever brief questions Officer Muza might have; and Officer Muza needed no reasonable suspicion to support the contact or command Appellee to stop. According to the Commonwealth, all probationers must submit to any probation officer's requests at any time. The Commonwealth distinguished between a stop and a search, conceding a search of the probationer is unauthorized based solely on the fact that the probationer is currently under supervision. The Commonwealth submitted that, as soon as Appellee backed away from Officer Muza's command to stop, Appellee violated his probation rules, specifically Condition L (stating: "Follow the probation officers' instructions and advice"). The Commonwealth concluded Appellee's attempt to leave the scene gave Officer Muza reasonable suspicion to incapacitate Appellee with a Taser.
The court ultimately granted Appellee's motion to suppress on April 21, 2011. The court determined Officer Muza had "seized" Appellee when he told Appellee not to run, Officer Muza had no reasonable suspicion Appellee was engaged in criminal activity or in violation of his probation at that moment, so the seizure was therefore unlawful. The court further reasoned the illegal seizure warranted suppression of all evidence recovered during the resulting searches.
The Commonwealth timely filed notice of appeal on May 17, 2011. On May 18, 2011, the court ordered the Commonwealth to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and the Commonwealth timely complied on June 2, 2011.
The Commonwealth raises two issues on appeal:
WHETHER A PROBATION OFFICER NEEDS REASONABLE SUSPICION TO SPEAK WITH A PROBATIONER IN PUBLIC?
CAN A PROBATION OFFICER DETAIN A PROBATIONER WHEN THE PROBATIONER FAILS TO SPEAK WITH HIM AND RUNS AWAY FROM HIM IN PUBLIC?
(Commonwealth's Brief at 4).*fn1
When the Commonwealth appeals from the grant of a suppression order, the relevant scope and standard of review are:
[We] consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. As long as there is some evidence to support them, we are bound by the suppression court's findings of fact. Most importantly, we are not at liberty to reject a finding of fact which is based on credibility.
Commonwealth v. Goldsborough, 31 A.3d 299, 305 (Pa.Super. 2011), appeal denied, ___ Pa. ___, 49 A.3d 442 (2012) (internal citations omitted). "The suppression court's conclusions of law, however, are not binding on the appellate court, whose duty is to determine if the suppression court properly applied the law to the facts." Id. (quoting Commonwealth v. Keller, 823 A.2d 1004, 1008 (Pa.Super. 2003), appeal denied, 574 Pa. 765, 832 A.2d 435 (2003)).
In its issues combined, the Commonwealth argues Appellee assented to a reasonable probation condition, by virtue of which any probation officer could speak with Appellee in public at any time and for any reason. Specifically, the Commonwealth relies on Condition L in Appellee's probation contract that states the probationer agrees to "follow the probation officers' advice and instruction." The Commonwealth maintains this provision allowed Officer Muza to stop Appellee at any time for questioning, to ensure compliance with his probation requirements; and the officers needed no reasonable suspicion or probable cause to do so. In other words, Condition L unequivocally gave Officers Muza and Kinsinger authority to instruct Appellee to stop and speak with them in public and answer questions.
Further, the Commonwealth contends probationers generally lose the protections of the reasonable suspicion standard for stops and seizures. The Commonwealth distinguishes between a seizure of a probationer and a search of a probationer. The Commonwealth reasons the appropriate standard for a search of a probationer is reasonable suspicion because probationers have a diminished expectation of privacy. Analogously, the Commonwealth claims the standard for seizure of a probationer drops from reasonable suspicion to no reason at all. The Commonwealth maintains Officer Muza could stop Appellee without reasonable suspicion because Appellee was already subject to supervision, by virtue of which Appellee had a diminished expectation of privacy.
Moreover, the Commonwealth justifies the stop by saying Appellee violated Condition L of his probation rules when he tried to leave after Officer Muza instructed him not to run. The Commonwealth insists Appellee's action gave the probation officers the authority to detain Appellee for the probation violation of failing to stop. Because the command not to run fell under Condition L, and Appellee's violation of Condition L legitimized the stop, the Commonwealth observes in a footnote (and without explanation) that the subsequent search was likewise sound; so any evidence discovered as a result qualified as either abandoned or lawfully obtained. The Commonwealth concludes the court erred in suppressing the evidence gained from the interaction of the probation officers with Appellee. We disagree.
Probation is a form of authorized supervision "aimed at rehabilitating and reintegrating a law breaker into society as a law-abiding citizen...[and] is deemed a constructive alternative to imprisonment." Commonwealth v. Colon, 708 A.2d 1279, 1282 (Pa.Super. 1998). One basic assumption of the institution of probation is that the probationer "is more likely than the ordinary citizen to violate the law." Commonwealth v. Moore, 805 A.2d 616, 619 (Pa.Super. 2002) (quoting United States v. Knights, 534 U.S. 112, 120, 122 S.Ct. 587, 592, 151 L.Ed.2d 497, ___ (2001)). As a result, individuals under supervision generally have limited Fourth Amendment rights, but they are still entitled to certain constitutional protections. Commonwealth v. Williams, 547 Pa. 577, 586, 692 A.2d 1031, 1035 (1997). The Fourth Amendment constitutional rights of either a probationer or a parolee are virtually indistinguishable. Id. at 585 n.7, 692 A.2d at 1035.
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