dissenting:
I respectfully dissent. The appellant was charged with resisting arrest. The Commonwealth must, of course, prove that the appellant offered resistance during an arrest that was lawful. I conclude that the Commonwealth has not established that there was a lawful arrest and, therefore, would reverse the judgment of sentence imposed.
A review of the testimony presented by the Commonwealth reveals that on March 20, 1980, two Pennsylvania Board of Probation and Parole agents were “tipped off” by Officer Spannuth of the West Reading Borough Police that appellant, who was a parolee under the supervision of Parole Agent Richard C. Shaffer, was in room 125 of the Pennview Motel located in Reading. Agent Shaffer accompanied by his partner Agent Robert Reber apparently then proceeded to the West Reading Borough police station and met Officer Spannuth. The testimony of Officer Spannuth indicates that, prior to the departure of the group from the police station, he telephoned the motel and spoke to the desk clerk or manager of the motel to arrange for access to the room in preparation for the search. Officer Spannuth then transported the parole agents in a West Reading Borough police *513car to the motel. The testimony of Officer Spannuth established that when they arrived at the motel at approximately 1:15 p.m., both he and Parole Agent Shaffer knocked on the door of the room. Officer Spannuth further testified that, when there was no response to their knocks, “we obtained a pass key to open up the room . .. from a maintenance man . . . employed by the motel.” (N.T. Trial 5-6). The testimony of Agent Shaffer established that he had no reason whatsoever to believe that appellant was in violation of parole until after they had entered the room.1
It was further established that prior to their entry into the room, neither the parole agents nor the police officers had procured a search warrant authorizing their entrance to the room. As the majority noted, once they had entered the room, the officers noticed appellant sleeping on the bed and observed several parole violations around the room.2
*514It was not until after the parole agent had entered the room and had observed the parole violations inside the room, that he informed appellant that he was under arrest. At this point both of the parole agents, as well as Officer Spannuth, were in the motel room. After appellant was informed that he was under arrest he made two requests: (1) that he be permitted to use the phone (2) that he be permitted to comb his hair. After appellant had done so, he bolted from the room but ran directly into Borough Police Chief Crawford who happened to be outside the door. Appellant was finally subdued by the officers after a short struggle.
I would hold that the entry into the room and the search were unlawful and that the parole violations observed as a result of the unlawful entry could not, therefore, provide the probable cause necessary for a lawful arrest of appellant. I would, therefore, reverse the Common Pleas Court which concluded that the warrantless search and subsequent arrest was lawful.
It is clear that a parole officer when acting in the course of his administrative duties need not obtain a search warrant before making a search of the living quarters of a parolee to whom he is assigned. Commonwealth v. Berry, 265 Pa. Super. 319, 401 A.2d 1230 (1979). Commonwealth v. Brown, 240 Pa. Super. 190, 361 A.2d 846 (1976); See Smith v. Rhay, 419 F.2d 160 (9th Cir. 1969).
The Pennsylvania Statute governing the authority of parole agents provides:
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 violation thereof. 61 P.S. § 331.27.
The Pennsylvania Board of Probation has the responsibility “to make general rules of conduct and supervision of persons heretofore and hereafter placed upon parole.” 61 *515P.S. § 331.23. These conditions include the requirement that the parolee regularly report to a parole agent, that he live in a specified residence, that he seek permission of the agent before moving or temporarily leaving the jurisdiction, that he avoid “undesirable” companions, the incurring of substantial indebtedness, the excessive use of intoxicating beverages and, that he seek employment. 37 Pa. Code § 63.4; See Commonwealth v. Brown, supra, 240 Pa.Superior Ct. at 195, 361 A.2d at 848.
It is the contention of the Commonwealth that these statutes and the foregoing case law are dispositive of the case before us. We are, however, not so persuaded since the evidence presented at the trial of appellant reveals that the Commonwealth did not establish that appellant had failed to report to his parole agent as required by the terms of his parole agreement, but, to the contrary, the Commonwealth established that the parole agents were not aware, in advance of their entry and search, that appellant was in violation of parole. Indeed, the testimony of agent Shaffer makes quite clear that prior to entering the motel room the parole agents had no reason to believe that appellant had in any way violated his parole. While there was an offer of proof to the effect that the Commonwealth would prove that appellant was in violation of the condition that he not change his residence without notifying his parole agent, the Commonwealth did not introduce any evidence at trial as to (1) a parole agreement reflecting a certain address for appellant as a parolee (2) the parole agreement reflecting the agreement of appellant that he would not move from the address without approval (3) the fact that appellant had changed his residence3 or (4) any other misbehavior of appellant4.
It has been established that parolees, despite having reduced expectations of privacy because of their status, are *516entitled to the protection against unreasonable searches and seizures afforded by the Fourth Amendment. See United States v. Bradley, 571 F.2d 787 (4th Cir. 1978); Latta v. Fitzharris, 521 F.2d 246 n. 2 (9th Cir. 1975). While Commonwealth v. Brown, supra, makes clear a parole agent does not normally require a warrant, this court also expressed there a certain concern:
When performing his normal duties, a parole agent is not required to obtain a search warrant. 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.
Id., 240 Pa.Superior Ct. at 197, 361 A.2d at 850; See People v. Coffman, 2 Cal.App.3d 681, 82 Cal.Rptr. 782 (1969). Cf. People v. Thompson, 252 Cal.App.2d 76, 60 Cal.Rptr. 203 (1967), cert. denied, 392 U.S. 930, 88 S.Ct. 2276, 20 L.Ed.2d 1388 (1968); People v. Hernandez, 229 Cal.App.2d 143, 40 Cal.Rptr. 100 (1964), cert. denied, 381 U.S. 953, 85 S.Ct. 1810, 14 L.Ed.2d 725 (1965). The Fourth Amendment right of a parolee to be secure against unreasonable searches and seizures is not violated when his living quarters are searched without a search warrant by his parole officer under circumstances where the parole officer’s conduct is “rationally and reasonably related to the performance of his duty as a parole officer.” (emphasis supplied). People v. Candelaria, 63 App.Div.2d 85, 89, 406 N.Y.S.2d 783, 785 (1978) (quoting People v. Huntley, 43 N.Y.2d 175, 179, 401 N.Y.S.2d 31, 33, 371 N.E.2d 794, 796 (1977)). While it is true that “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.” Commonwealth v. Brown, supra, 240 Pa.Superior Ct. at 197, 361 A.2d at 849, it is also every bit as clear that
[a] parole officer may not conduct a warrantless search of items in a parolee’s possession while acting on the prior *517request of law enforcement officials and in concert with them. The parole officer is in such case acting, not as the supervising guardian, so to speak, of the parolee, but as the very agent of the very authority upon whom the authority for the search warrant is imposed. To permit concerned effort among officials in an attempt. . . to circumvent [a parolee’s] rights cannot be done.
Smith v. Rhay, 419 F.2d at 162-163. Accord, Commonwealth v. Berry, supra; Commonwealth v. Brown, supra; United States v. Hallman, 365 F.2d 289 (3rd Cir. 1966).
While there is nothing in the record before us which would allow us to conclude with certainty that the police officers engaged the assistance of the parole agents to effect the arrest of appellant and thereby circumvent the warrant requirements of the Fourth Amendment in violation of the principles established in the above cited cases, we nonetheless conclude that this entry and search—conducted without a warrant and without knowledge of parole violation—as well as the subsequent arrest of appellant were unlawful.
This court has held that a lawful arrest is an essential element of the crime of resisting arrest. Commonwealth v. Stortecky, 238 Pa. Super. 117, 352 A.2d 491 (1975); Commonwealth v. Whitner, 241 Pa. Super. 316, 361 A.2d 414 (1976). Since the Commonwealth has not demonstrated that the arrest was a lawful one it has not adequately established the offense of resisting arrest. Therefore, I would reverse the judgment of sentence and order the appellant discharged.
. Direct Examination by Assistant District Attorney of Parole Agent Richard C. Shaffer:
Q. Now in this particular instance, did you have reason to believe, prior to entering that room, that Mr. Miller had violated probation? A. No.
Q. Did you have reason to believe he was living on North Sixth Street [the address of defendant on parole board records] or the Pennview Motel?
A. North Sixth Street.
Q. Now when you entered the room, you had determined that he was in violation, right?
A. Yes.
Q. All right. And you placed him under arrest?
A. Yes.
Mr. Stevens: Cross Examination.
By Mr. Fronheiser:
Q. Mr. Shaffer did you say that you had no reason to believe that Mr. Miller was in violation until you entered the room, is that correct?
A. Pardon me.
Q. You had no reason, I believe one of your last statements was you had no reason to believe Mr. Miller was in violation of his probation until you entered the room. Is that correct?
A. That’s correct.
Q. And is it true that you did not have any warrant to arrest? A. That is correct.
. We observe, as has the majority, that there was no evidence presented at the trial, nor is there any indication in the record, as to what the parole violations were.
. See footnote 1, supra.
. See footnote 2, supra.