PA Supreme Court Clarifies Parole Searches
By Shaffer & Engle Law Offices, LLC posted in Parole Violations on Thursday, July 18, 2013
"Sentencing courts are not empowered to direct that a probation officer may conduct warrantless, suspicionless searches of a probationer as a condition of probation."
By ** Attorney Elisabeth K.H. Pasqualini**, Parole Violation Attorney, Harrisburg, PA
In Commonwealth v. Wilson, 2013 Pa. LEXIS 1040 (Pa. May 28, 2013), the PA Supreme Court recently clarified the statutory confusion arising between what searches a judge could order as a "reasonable condition" of probation/parole and what the statute actually provides regarding parole searches without "reasonable suspicion".
The defendant was convicted of "persons not to possess or own firearms". At sentencing, the trial court, in addition, to sentencing the defendant to 2 1/2 to 5 years, authorized "warrantless, suspicionless searches of appellant's residence for weapons, and prohibited him from residing in a household where anyone had a firearm." The defendant appealed and challenged the legality of the sentencing provision allowing such searches to occur.
Title 42 Pa.C.S. § 9912 provides that "a probation officer may conduct warrantless searches of the property of an offender only if the officer has reasonable suspicion to believe that the property contains contraband or other evidence of violations of the offender's conditions of probation." (emphasis added).
While, Title 42 Pa.C.S. § 9754(c)(13), provides that a sentencing court may impose such conditions "[t]o satisfy any other conditions reasonably related to the rehabilitation of the defendant and not unduly restrictive of his liberty or incompatible with his freedom of conscience." (emphasis added).
In Commonwealth v. Pickron, 535 Pa. 241, 634 A.2d 1093 (Pa. 1993), the Court previously decided that "there was no statute or regulation providing guidance by which a probation or parole officer could conduct a warrantless search. The Court reasoned that absent this statutory or regulatory guidance, or an agreement by the parolee consenting to the search, the Fourth Amendment prohibited the warrantless search of the parolee's residence."
The Court here did not reach the constitutional issue. Rather, it decided this case solely on a comparison of the two statutes. The more specific statute, §9912 expressly constrains the court from infringing upon one's liberty without reasonable suspicion. The later, affords the protection of liberty. Both statutes can be read in conformity and without allowing the court to remove the restrictions placed on parole officers in §9912.