ANONYMOUS TIP FROM UNRELIABLE, UNCORROBORATED SOURCE THAT PAROLEE IS DEALING DRUGS IS INSUFFICIENT TO JUSTIFY SEARCH OF RESIDENCE
The Pa. Superior Court has decided the case of Com. v. Coleman, M. No. 1839 WDA 2014 (December 14, 2015), holding that an unreliable, uncorroborated, anonymous tip received by a State Parole Agent was insufficient to establish the requisite reasonable suspicion for police to enter the apartment without a search warrant.
On December 17, 2012, a State Parole Agent received an anonymous telephone call from a woman claiming that Appellant was one of the largest drug sellers in the West View, Allegheny County area and had received a driving under suspension citation. One of the conditions of Appellant’s parole was that he report any contact with police to his parole officer. Agent Pekar confirmed that Appellant had received a citation for driving with a suspended license. Appellant had not informed his parole officer of that citation. Agents and Appellant tried to arrange for a meeting at Appellant’s documented residence; however, they were unable to do so.
Agents eventually arranged to meet Appellant at the parole office on December 18, 2012. When they did, the searched him. That search revealed nothing and Agent Timothy Wolfe told Appellant at that time that he had information that Appellant was involved in drug activity and was going to search his apartment. Appellant did not give them permission for this search. Agent Pekar and Agent William McKay traveled to Appellant’s residence while Appellant remained at the parole office. The agents retrieved a key from the rental office manager, whose office was located next door to Appellant’s apartment. After entering the apartment, the agents observed a digital scale in plain view that had white powder on it. Suspected cocaine was also found in a garbage bag.
Appellant was charged with numerous drug offenses. He thereafter filed and litigated a motion to suppress, contending that the warrantless search was unconstitutional. The court denied that motion and the matter proceeded to trial. After his initial trial resulted in a hung jury, a subsequent jury found Appellant guilty of PWID, possession of cocaine, and possession of drug paraphernalia. The court sentenced Appellant to five to ten years incarceration to be followed by five years probation. This timely appeal ensued.
Whether, under the totality of the circumstances, Appellant’s parole agents had reasonable suspicion to enter his apartment without a search warrant.
In this case, the Parole agents did not have specific and articulable facts that Appellant was engaged in criminal activity.
Appellant acknowledged that, as a parolee, under both statutory authority and case law, he has less constitutional search and seizure protections than the regular citizen. However, he correctly asserted that parolees still have limited constitutional protections relative to warrantless searches. Parole officers may perform a search of a parolee’s residence where the totality of the circumstances demonstrates reasonable suspicion that evidence of contraband or a violation of parole will be discovered.
In order for an anonymous tip to give rise to reasonable suspicion of criminal activity, it must be of sufficient quality that it may be found reliable. Appellant maintained that the parole officers lacked reasonable suspicion to search his apartment. He contended that the search was based “on an unreliable, uncorroborated, anonymous tip received by Agent Pekar on December 17, 2012.” Appellant submitted that the anonymous caller did not indicate that she saw Appellant in possession of drugs or selling drugs and only stated that he was a large drug dealer in the area. In addition, Appellant argued that, although Agent Pekar confirmed that the anonymous caller was correct that Appellant had been cited for driving with a suspended license, this fact did not render the caller reliable.
The Commonwealth countered that, because Appellant failed to inform his parole officer of his citation for driving with a suspended license and did not appear at his residence to meet with parole agent on another occasion, his parole officer was permitted to conduct a compliance check of his residence. This argument was rejected by the Superior Court which concluded that parole agents cannot escape the statutory requirements for a warrantless entry based on merely renaming it a compliance check; otherwise, agents could freely enter a parolee’s residence without a warrant at any time even without reasonable suspicion of criminal activity.
The Commonwealth also argued that, based on the totality of the circumstances, the parole agents had reasonable suspicion to search his address. And, once the agents were inside the apartment, they observed a digital scale with white powder in plain view and a box of sandwich baggies in the living room. This information, according to the Commonwealth, was sufficient to permit them to look inside the garbage bag in the living room to determine if Appellant had contraband or evidence of other violations of his parole.
As Appellant acknowledged, a parolee has limited Fourth Amendment rights because of a diminished expectation of privacy. State parole agents are statutorily permitted to perform a search of a parolee’s residence based on reasonable suspicion that “the real property or other property in the possession of or under the control of the offender contains contraband or other evidence of violations of the conditions of supervision.”
Here, parole agents did not gain entry via permission from Appellant or another resident. Rather, they entered the apartment without consent. The agents herein were not conducting a scheduled or routine home visit, as they knew Appellant was not home, and they intended to search the home for drug contraband.
While parole agents have statutory authority to enter a parolee’s premises without a warrant to search for contraband, they must have reasonable suspicion of criminal activity. Parole agents cannot escape the statutory requirements for a warrantless entry based on merely renaming it a compliance check; otherwise, agents could freely enter a parolee’s residence without a warrant at any time even without reasonable suspicion of criminal activity.
DISCLAIMER – The information contained in this article is for general guidance on the subject matter only. The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, and the inherent hazards of electronic communication, there may be delays, omissions or inaccuracies in information in this article. Accordingly, the information in this article is provided with the understanding that the authors and publishers are not herein engaged in rendering legal or other professional advice and services. As such, it should NOT be used as a substitute for consultation with a McMahon & Winters Law Firm attorney. Before making any decision or taking any action, you should always consult with a McMahon & Winters Law Firm attorney.