Commonwealth v. Green

HOFFMAN, Judge,

dissenting:

I respectfully dissent. I first wish to emphasize that the parole officer’s compliance with “office practice and proce*36dure” governing searches does not, on its own, make the search reasonable under the fourth amendment. A search made in compliance with such a practice could be proper only if the practice itself complies with constitutional standards—i.e., allows for searches only where there are “reasonable grounds” to believe that contraband will be found. See Griffin v. Wisconsin, 483 U.S. 868, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987).1 In the case at bar, the parole officer referred to an office policy pursuant to which agents would search the residence of a parolee whenever a parolee was taken into custody (even if the arrest occurred at the parole office), and whenever agents received information that a parolee may be involved with drugs. Because this “policy” allows for the search of a residence without regard to the likelihood (“reasonable grounds”) that contraband would be found in the parolee’s residence, the policy, in my view, is not “reasonable” within the meaning of the fourth amendment.

The next question is whether the search in this case nevertheless was reasonable because there were in fact reasonable grounds to believe that contraband would be found in appellant’s residence. On this issue, I agree with the Honorable Russell M. Nigro in the court below, who observed that “[f]ruitless drug surveillance, an uncorroborated anonymous telephone call, a suspect wearing what appeared to be expensive jewelry, a suspect driving a Cadillac whose ownership was unverified, and a search of a room on a preceding night which disclosed nothing, do not *37[establish] reasonable grounds” to search a private residence without a warrant. See Suppression Court Opinion at 10, R.R. at 14a. I would add that, although a parolee’s status justifies a reduced level of suspicion under the fourth amendment, the requirement that this suspicion be particular to the place to be searched remains in full force. And, in this case, although the facts known to the parole officer regarding appellee’s activities and possessions warranted heightened scrutiny of appellee’s activities, this information provided no reason to believe that contraband would be found at appellee’s residence. Because I find that the warrantless search in this case was unreasonable, I would affirm the order of the suppression court.

Finally, it should be emphasized that this case is limited to the question of the legitimacy of the search under the fourth amendment of the United States Constitution. The question whether a similar result would follow under the search and seizure provision of the Pennsylvania Constitution, see Article 1, Section 8, which our Supreme Court has held to be more protective of individual privacy rights, see, e.g., Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991), is not before us.

. The search of the probationer in Griffin was conducted pursuant to a regulation which permitted warrantless searches of probationers as long as there were “reasonable grounds" to believe that contraband would be found. The Griffin Court did not make an extended inquiry into whether reasonable grounds in fact existed in that case because it found that the Wisconsin regulation complied with the fourth amendment and that there were "reasonable grounds" from which the Wisconsin Supreme Court could find that this regulatory standard had been met. 483 U.S. at 880 n. 8, 107 S.Ct. at 3172 n. 8. Under Griffin, then, a state regulation (and, perhaps, an informal practice such as that presented here?) governing the search of a probationer or parolee may be entitled to some deference, but only so long as the regulation conforms with fourth amendment standards.