February 3, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
DARON JACKSON Appellant
Appeal from the Judgment of Sentence of January 25, 2013 In the Court of Common Pleas of Allegheny County Criminal Division at No.: CP-02-CR-0008477-2012
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J. [*]
Daron Jackson ("Jackson") appeals his January 25, 2013 judgment of sentence. Jackson contends that his probation officer did not have reasonable suspicion to enter his residence, and that the evidence that resulted from that illegal entry should have been suppressed. After careful review, we agree with Jackson and, therefore, vacate the judgment of sentence, reverse the order denying suppression, and remand for further proceedings.
The trial court summarized the factual history as follows:
[ O]n May 30, 2012, Probation Officer Michael Maroni and his partner arrived at 7301 Kelly Street, Apartment 2 for the purpose of executing a compliance check. Officer Maroni had been supervising [ Jackson] for a few months, and after completing his April completing check, Officer Maroni referred [ Jackson] to the Day Reporting Center for assistance with a job search and his GED. During the April compliance check, Officer Maroni had smelled marijuana in the residence. [ Jackson] had been discharged from the Day Reporting Center for failure to m maintain his appointments, thus Officer Maroni initiated a compliance check to ensure that [ Jackson] was meeting the term s and conditions of his probation. The conditions of [ Jackson's] probation are that he was not permitted to use or possess any narcotics or firearms, he must obtain a drug and alcohol evaluation and obtain his GED.
Upon arriving at [ Jackson's] residence, [ Jackson's] girlfriend m et Officer Maroni and his partner at the door. Although he was familiar with [ Jackson's] girlfriend, Officer Maroni identified him self as being [ Jackson's] probation officer and asked if [ Jackson] was there. [ Jackson's] girlfriend then opened the door, turned and ran up the stairs into the living area of the apartment hollering [ Jackson's] name and announcing that his probation officer was here. Officer Maroni followed [ Jackson's] girlfriend up the stairs into the living area of the apartment, as he had a concern that [ Jackson] was concealing or destroying evidence of a crime. Immediately upon entering the residence, Officer Maroni could smell marijuana. When Officer Maroni arrived in the living area of the residence, he found [ Jackson] trying to "stuff a bag of – a big grocery bag underneath the couch. And he had a pair of scissors on the couch next to him and a bunch of baggies with marijuana residue all over the place." Given his experience, and the totality of the circumstances, Officer Maroni indicated he believed [ Jackson] was violating the term s of his probation.
Trial Court Opinion ("T.C.O."), 5/ 6/ 2013, at 2-3 (citations to notes of testimony omitted).
Jackson was charged with possession with intent to deliver ("PWID"), possession of a controlled substance, and possession of drug paraphernalia. On October 24, 2012, Jackson filed a motion to suppress, alleging that Officer Maroni did not have the reasonable suspicion necessary to justify entry into Jackson's residence. That motion was denied. The case proceeded to a non-jury trial. On January 25, 2013, Jackson was found guilty of possession of a controlled substance and possession of paraphernalia and acquitted of PWID. Jackson was sentenced to eighteen months of probation.
This appeal followed. Jackson was ordered to file, and timely filed, a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
On appeal, Jackson raises one issue:
Did the lower court abuse its discretion in denying Mr. Jackson's motion to suppress where his probation officer entered and searched his residence on a mere hunch that criminal activity was afoot?
Jackson's Brief at 4.
Our standard of review is clear:
Our standard of review in addressing a challenge to the denial of a suppression motion is limited to determining whether the suppression court's factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the suppression court's factual findings are supported by the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. Where . . . the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts. Thus, the conclusions of law of the courts below are subject to our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa.Super. 2012) appeal denied, 65 A.3d 413 (Pa. 2013).
Probation is a form of authorized supervision "aim ed at rehabilitating and reintegrating a law breaker into society as a law-abiding citizen . . . [ and] is deem ed 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 m ore 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 (2001)). As a result, individuals under supervision generally have limited Fourth Amendment rights, but they are still entitled to certain constitutional protections. Commonwealth v. William s, 692 A.2d 1031, 1035 (Pa. 1997). The Fourth Amendment constitutional rights of either a probationer or a parolee are virtually indistinguishable.
Commonwealth v. Chambers, 55 A.3d 1208, 1212 (Pa.Super. 2012) (bracketed material and ellipsis in original; citations modified).
[ A] probation officer[ may] search a probationer's person or property, if there is reasonable suspicion to believe the probationer possesses contraband or other evidence of violations of the conditions of supervision. 42 Pa.C.S.A. § 9912(d)(1)(i), (d)(2). Reasonable suspicion to search must be determined consistent with constitutional search and seizure provisions as applied by judicial decisions; and in accordance with such case law, enumerated factors, where applicable, may be taken into account.
Chambers, 55 A.3d at 1214; see 42 Pa.C.S.A. § 9912.
Reasonable suspicion exists when an officer can identify specific and articulable facts, and reasonable inferences drawn therefrom, that led the officer to "reasonably believe that criminal activity may be afoot." Commonwealth v. Tither, 671 A.2d 1156, 1158 (Pa.Super. 1996). "Unparticularized suspicion" or a hunch is insufficient to provide reasonable suspicion. Id.
In establishing reasonable suspicion, the fundamental inquiry is an objective one, namely, whether " the facts available to the officer at the moment of the [ intrusion] 'warrant a man of reasonable caution in the belief' that the action taken was appropriate." Terry v. Ohio, 392 U.S. 1, 21, 22, (1968) (citations omitted); see also Commonwealth v. Zhahir, 751 A.2d 1153, 1156 (Pa. 2000). This assessment, like that applicable to the determination of probable cause, requires an evaluation of the totality of the circum stances, with a lesser showing needed to demonstrate reasonable suspicion in terms of both quantity or content and reliability.
Commonwealth v. Moore, 805 A.2d 616, 619-20 (Pa.Super. 2002) (quotation m arks omitted; bracketed material in original; citations modified). Further, pursuant to statute, when assessing whether a probation officer has reasonable suspicion to conduct a search, we consider the following:
(6) The existence of reasonable suspicion to search shall be determined in accordance with constitutional search and seizure provisions as applied by judicial decision. I n accordance with such case law, the following factors, where applicable, may be taken into account:
(i) The observations of officers.
(ii) Information provided by others.
(iii) The activities of the offender.
(iv) Information provided by the offender.
(v) The experience of the officers with the offender.
(vi) The experience of officers in similar circum stances.
(vii) The prior criminal and supervisory history of the offender.
(viii) The need to verify completing with the conditions of supervision.
42 Pa.C.S.A. § 9912(d)(6).
A probation officer must be able to point to specific conduct to justify his belief that reasonable suspicion exists. Chambers, 55 A.3d at 1216. In Chambers, the probationer was walking in a high crime area when probation officers pulled their car over, identified them selves, and told him to stop. The probationer then attempted to run away. This Court affirmed the grant of a suppression motion, holding that presence in a high crime area and flight were not sufficient, without specific conduct of criminality or illegality identified by the probation officers, to create reasonable suspicion.
Outside of the probation context, we have held that someone leaving the scene when warned that police are present does not provide reasonable suspicion. See Tither, 671 A.2d at 1158. In Tither, a police officer observed a car pulled over with a man reaching into the window. Then someone yelled "5-0, 5-0, " a warning that police were nearby. The man walked away and the car pulled away. Based upon these observations, the police officer believed that a drug transaction was occurring, and pulled the car over. We held that the fact that the car pulled away after the warning was not sufficient to establish reasonable suspicion. Id.
Here, Officer Maroni testified that he went to Jackson's house. Notes of Testimony ("N.T"), 1/ 11/ 2013, at 6. Jackson's girlfriend came to the door. Id. at 7. Officer Maroni asked if Jackson was there, and identified him self as Jackson's probation officer. The girlfriend responded that Jackson was home. Id. Officer Maroni testified that the girlfriend " ran up the steps and started hollering [ Jackson's] name, " and "[ s] he kept saying, [ Jackson], your PO's here, your PO's here, numerous times." Id. Officer Maroni described her manner of speech as signaling a warning to Jackson. Id. at 8. Officer Maroni testified that, on a prior visit a month earlier, he had smelled marijuana in Jackson's residence; however, on the day in question, when Officer Maroni was outside, he did not smell anything. Id. at 11-12. Officer Maroni also stated that the girlfriend did not open the door for him or invite him inside the house. Id. at 13. Because Officer Maroni believed Jackson might be trying to destroy or hide something, he entered the apartment and followed the girlfriend up the stairs. Id. at 8.
Instantly, there is even less observed behavior upon which to base reasonable suspicion than in Chambers or Tither. In Chambers, the probation officers were in a high-crime area and witnessed the defendant's flight. In Tither, the police officer heard a verbal warning and saw the car pull away seemingly in response to that warning. Neither situation sufficed to establish reasonable suspicion. Here, Officer Maroni only heard the girlfriend say "your PO's here." While Officer Maroni believed that to constitute a warning to Jackson, he offered nothing beyond that belief to establish reasonable suspicion. Officer Maroni's lack of articulable suspicion is demonstrated by his testimony that he "didn't know if [ Jackson] was trying to destroy something, " or that Jackson could have been doing something " illegal with a firearm ." N.T. at 8-9. This equivocal testimony establishes that the probation officer was not acting upon specific, observed conduct, but solely upon guesswork and conjecture. Our precedents make clear that this is insufficient to establish reasonable suspicion.
Because reasonable suspicion had not been established, the trial court erred in denying Jackson's motion to suppress. The evidence found by Officer Maroni formed the basis upon which Jackson was convicted. N.T. 1/ 25/ 2013, at 7-8. Accordingly, the failure to suppress this evidence was not harm less. A new trial is warranted. Commonwealth v. Guerrero, 646 A.2d 585, 588 (Pa.Super. 1994). Therefore, we reverse Jackson's judgment of sentence, and we rem and for a new trial in accordance with this memorandum.
Judgment of sentence vacated. Suppression order reversed. Rem anded for further proceedings. Jurisdiction relinquished.