Commonwealth v. Brown

Opinion by

Hoffman, J.,

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.1 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.

*193On 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 accom*194pany 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 society’s rehabilitative efforts, they are treated differently from the general population. Morrissey v. Brewer, supra.2 Most importantly, parolees “are subjected to specified conditions for the *195duration of their terms. These conditions restrict their activities substantially beyond the ordinary restrictions imposed by law on an individual citizen.” 408 U.S. at 479.

In Pennsylvania, the Board of Parole3 is charged with the responsibility “to make general rules for the conduct and supervision of persons heretofore or hereafter placed upon parole.” 61 P.S. §331.23.4 Conditions established by the Board include, for example, the responsibility to report to a parole agent, to live in a specified residence, to seek permission of the agent before moving or temporarily leaving the jurisdiction, to avoid “undesirable” companions and incurring substantial indebtedness and to seek employment. 37 Pa. Code §63.4.

Undoubtedly, our legal system can tolerate the diminished legal status of parolees — that is, no court has held that a parolee is entitled to the full panoply of individual rights and liberties. Cf., Mempa v. Rhay, 389 U.S. 128 (1967). Recent court decisions have been unanimous, however, in holding that a parolee or probationer must be afforded due process. See, e.g., Morrissey; Gagnon v. Scarpelli, 411 U.S. 778 (1973); Commonwealth v. Davis, 234 Pa. Superior Ct. 31, 336 A.2d 616 (1975). To so hold is only the beginning of judicial inquiry. As stated in Morrissey, supra at 482, “[o]nce it is determined that due process applies, the question remains what process is due.”

The approach applied by the Supreme Court in Morrissey was the employment of a balancing test.5 On one hand, “[wjhether any procedural protections are due depends on the extent to which an individual will ‘be condemned to suffer a grievous loss.’ ” Id. The parolee *196has a strong interest in continued liberty and in the possibility of resuming a normal life, one hopes, as a productive citizen. Some commentators have suggested that the myriad conditions imposed by parole boards are demeaning to the parolee and counterproductive to rehabilitative goals. See Comment, The Parole System, supra. On the other hand, “[tjurning to the question what process is due, we find that the State’s interests are several. The State has found the parolee guilty of a crime against the people. That finding justifies imposing extensive restrictions on the individual’s liberty. Release of the parolee before the end of his prison sentence is made with the recognition that with many prisoners there is a risk that they will not be able to live in society without committing additional antisocial acts.” Morrissey, supra at 484. This risk provides the justification for some curtailment of a parolee’s liberty.

Further, we must consider a second interest of society — that is, whether administrative efficiency excuses its non-compliance with the warrant requirements of the Fourth Amendment.6 The parole agent is a necessary adjunct to the parole system. “... [TJhe parole officer ordinarily does not take steps to have parole revoked unless he thinks that the violations are serious and continuing so as to indicate that the parolee is not adjusting properly and cannot be counted on to avoid antisocial activity. The broad discretion accorded the parole officer is also inherent in some of the quite vague conditions Morrissey, supra at 480. Such broad discretion is viewed as an administrative necessity.

*197The specific problem has been addressed by other courts. There is, however, a division of authority on the degree of Fourth Amendment protection due to parolees. See, e.g., Brown v. Kearney, 355 F.2d 199 (5th Cir. 1966) (dictum); United States v. Lewis, 274 F. Supp. 184 (S.D.N.Y. 1967) (granting extensive protection); cf., Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975); People v. Thompson, 252 Cal. App. 2d 76, 60 Cal. Rptr. 203 (1967), cert. denied, 392 U.S. 930 (1968); People v. Hernandez, 229 Cal. App. 2d 143, 40 Cal. Rptr. 100 (1964), cert. denied, 381 U.S. 953 (1965).

The basis for holding that a parolee has diminished Fourth Amendment rights is the necessity for an agent to have free access to supervise the parolee. Cf. Wyman v. James, 400 U.S. 309 (1971); Camara v. Municipal Court, 387 U.S. 523 (1967). Society has an interest — both for its protection and to effectuate rehabilitation — in facilitating such supervision. We, therefore, agree that when performing his normal duties, a parole agent is not required to obtain a search warrant.7 We are, however, cognizant of another distinction cited in relevant case law: once a parole agent involves the police in the search and arrest of a parolee, upholding the search permits the police to circumvent the warrant requirement in what in reality is the normal function of the police. See, People v. Coffman, 2 Cal. App. 3d 681, 82 Cal. Rptr. 782 (1969); cf., People v. Thompson, supra. As stated in Coffman, supra at 688, 82 Cal. Rptr. at 786: “The parole agent’s physical presence, even his nominal conduct of the physical acts of search, does not signalize validity. The purpose of the search, not the physical presence of a parole agent, is the vital element.” That is, once the rationale that justifies informal treatment of parolees ceases, the parolee’s *198Fourth Amendment rights must be given full consideration.

The facts of the case underscore the infirmity of allowing the parole agent to ignore the warrant requirement. When the agent discovered the proceeds of the burglary on his initial visit to appellant’s residence, he had ample basis to acquire a warrant. The Commonwealth cannot argue that the agent was acting to preserve evanescent evidence because the agent delayed in effectuating the arrest. He requested the assistance of the police, and thereby, relied fully on the police power to arrest. Stated differently, the parole agent ceased acting as an administrator of the parole system. He was not collecting evidence in order to have appellant’s parole revoked. Rather, he was acting as a police officer, involving a witness who wanted to press criminal charges and other police officers. Once he “switched hats” and, in all relevant respects, became a police officer, the administrative justification that generally permitted him to avoid acquisition of a warrant was no longer applicable. Thus, the Constitution mandated that he obtain a search warrant for appellant’s premises.

Therefore, because the lower court erred in denying appellant’s motion to suppress, we reverse and remand for a new trial.

. Appellant raises four additional contentions in his brief. Due to our disposition of his first claim, however, we do not reach the merits of those contentions.

. See also, Comment, The Parole System, supra at 284-85: “Parole provides a presently existing program through which prisoners may be removed from that environment and, hopefully, successfully reintegrated into society. The parole system seeks to achieve the rehabilitation of the parolee and his reintegration into society by the time of the termination of his parole. Reintegration and rehabilitation are pursued within general constraints imposed by a duty to protect the public from any potential criminal behavior by the parolee. To achieve these ends, many limitations, termed conditions, are imposed on the parolee, and compliance with such conditions is ensured through continuing supervision by parole officers.”

. See Act of May 1, 1929, P.L. 1184, §1 et seq.; 71 P.S. §841 et seq.

. Act of August 6, 1941, P.L. 861, §23.

. See also, Comment, The Parole System, supra at 296-300.

. Both parties cite 61 P.S. §331.27: “Parole officers appointed by the board are hereby declared to be peace officers and are hereby given police power and authority throughout the Commonwealth to arrest without warrant, writ, rule or process any parolee or probationer under the supervision of the board for failing to report as required by the terms of his probation or parole, or for any other violation thereof.” The Commonwealth, however, does not contend that the statute is dispositive of the instant case. Rather, the Commonwealth recognizes that we must decide the Fourth Amendment issue.

. Thus, 61 P.S. §331.27, note 6 supra, has continuing validity in so far as it applies to a parole agent’s administrative function.