Com. v. Anderson, I. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
IAN CHRISTOPHER ANDERSON :
:
Appellant : No. 1698 MDA 2017
Appeal from the Judgment of Sentence October 16, 2017
in the Court of Common Pleas of Adams County
Criminal Division at No.: CP-01-CR-0000961-2016
BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 07, 2018
Appellant, Ian Christopher Anderson, appeals from the judgment of
sentence imposed following his bench trial convictions of four counts of
invasion of privacy. Specifically, he challenges the denial of his motion to
suppress evidence found in a lock box and, subsequently, his computer, on an
unannounced home visit by his probation officers.1 We conclude that in the
totality of circumstances, the probation officers had both Appellant’s consent
and reasonable suspicion to search the lock box and the computer.
Accordingly, we affirm.
We derive the facts of the case from the trial court’s opinion filed
December 5, 2017, referencing its order and opinion on Appellant’s motion to
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1 The box is variously referred to as a lock box, a safe or a safety deposit box.
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* Retired Senior Judge assigned to the Superior Court.
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suppress filed April 4, 2017, and our independent review of the certified
record.2 (See Rule 1925(a) Opinion, 12/05/17; Opinion on [Appellant’s]
Motion for Suppression, 4/04/17, at 1-4; N.T. Proceedings, 12/29/16).
On July 9, 2014, York County Probation Officers Christian Deardorff and
Dana Flay conducted an unscheduled field visit to Appellant’s residence.3
Appellant was on probation following conviction for possession of drug
paraphernalia. As a condition of probation, Appellant had agreed to be subject
to a search of his person, his vehicle, and his residence. Appellant also agreed,
among other things, not to possess weapons and to refrain from the use of
drugs or alcohol.
Appellant told the probation officers that he slept on a couch in the
basement. The officers were skeptical as the couch appeared to be used for
storage. It was covered in boxes, clothing, and other items. Appellant then
led the probation officers to the main floor of the house, where he stated he
kept other belongings.
There, in plain view, the officers saw a knife, and a digital scale of the
kind drug dealers use. Appellant also pointed to a firearm in the corner of the
room, leaning against a wall. The firearm was loaded. Officer Deardorff also
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2 Counsel for Appellant failed to include the opinions of the trial court in the
brief, violating Pennsylvania Rule of Appellate Procedure 2111(a)(10), and
(b). Counsel also failed to include a statement of errors. See Pa.R.A.P.
2111(a)(11).
3 Appellant lived in the home of his mother.
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noticed the lock box on the floor. Appellant claimed not to know what was in
it. The box contained marijuana pipes and a crack pipe, a pill bottle with
marijuana seeds, a small amount of marijuana residue, and CD/DVD disks.
Using Appellant’s computer (with his permission and password) the
officers found that the DVDs contained nude images of Appellant’s five year-
old daughter and her nine year-old girlfriend.4 At this point, Officer Deardorff
handcuffed Appellant, read him Miranda warnings and placed him under
arrest.5 He also notified the local police.
The case was transferred to Adams County where some of the images
of the adult women were taken. (See Opinion on Motion for Suppression, at
4 n.4). Appellant filed a motion to suppress, which the trial court denied.
Following a stipulated bench trial, the court found Appellant guilty of four
counts of invasion of privacy. See 18 Pa.C.S.A. § 7507.1(a)(1).
On October 16, 2017, the court sentenced Appellant to an aggregate
term of not less than six nor more than twenty-three months plus twenty-nine
days of incarceration, followed by three years of consecutive probation. This
timely appeal followed. Appellant filed a court-ordered statement of errors on
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4 They also contained nude images of a former girlfriend and his present
girlfriend, using the bathroom and bathing.
5 Miranda v. Arizona, 384 U.S. 436 (1966).
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November 30, 2017. See Pa.R.A.P. 1925(b). The trial court filed an opinion
on December 5, 2017. See Pa.R.A.P. 1925(a).
Appellant presents one compound question for our review:
Whether the [t]rial [c]ourt erred by not granting
suppression of evidence where Appellant was directed to open the
lockbox in his bedroom by Officer Deardorff, prior approval from
his supervisor was not obtained, the intent of the officer was to
get in the box even by taking it back to his office and there was
no reasonable belief that anything illegal was in there as evidence
of the Appellant violating his supervision was already found, i.e.
firearm, knife and drug paraphernalia? Further, whether he was
in custodial detention, not mirandized (sic) and the search was
conducted after criminal charges were apparent and done so with
knowledge that a warrant may be required?
(Appellant’s Brief, at 4).
Our standard of review in addressing a challenge to the
denial of a suppression motion is limited to determining whether
the suppression court’s factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. Where
. . . the appeal of the determination of the suppression court turns
on allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below are
subject to our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783–84 (Pa. Super. 2012), appeal
denied, 65 A.3d 413 (Pa. 2013) (citation omitted).
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“[A] parolee and a probationer have limited Fourth Amendment rights
because of a diminished expectation of privacy . . . . [T]he requirement that
a parole [or probation] officer obtain a warrant based on probable cause
before conducting a search does not apply.” Commonwealth v. Moore, 805
A.2d 616, 620 (Pa. Super. 2002) (quoting Commonwealth v. Williams, 692
A.2d 1031, 1035 (Pa. 1997)).
Initially, it must be remembered that “the very assumption
of the institution of probation” is that the probationer “is more
likely than the ordinary citizen to violate the law.” See United
States v. Knights, 534 U.S. 112, [120] . . . (2001) (citations
omitted). In that case, regarding the search of a probationer, the
[United States Supreme] Court stated the following:
Although the Fourth Amendment ordinarily requires
the degree of probability embodied in the term “probable
cause,” a lesser degree satisfies the Constitution when the
balance of governmental and private interests makes such
a standard reasonable. Those interests warrant a lesser
than probable cause standard here. When an officer has
reasonable suspicion that a probationer subject to a search
condition is engaged in criminal activity, there is enough
likelihood that criminal conduct is occurring that an intrusion
on the probationer’s significantly diminished privacy
interests is reasonable. The same circumstances that lead
us to conclude that reasonable suspicion is constitutionally
sufficient also render a warrant requirement unnecessary.
Id. at 588 . . . (citations omitted).
In establishing reasonable suspicion, the fundamental
inquiry is an objective one, namely, whether “the facts available
to the officer at the moment of the [intrusion] ‘warrant a man of
reasonable caution in the belief’ that the action taken was
appropriate.” Terry v. Ohio, 392 U.S. 1, 21, 22, . . . (1968)
(citations omitted); see also Commonwealth v. Zhahir, 561 Pa.
545, 552, 751 A.2d 1153, 1156 (2000). “This assessment, like
that applicable to the determination of probable cause, requires
an evaluation of the totality of the circumstances, with a lesser
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showing needed to demonstrate reasonable suspicion in terms of
both quantity or content and reliability.” Commonwealth v.
Shine, 784 A.2d 167, 170 (Pa. Super. 2001) (citations omitted).
Moore, supra at 619–20.
Here, on independent review, we conclude that the suppression court’s
factual findings are supported by the record, and the court properly denied
suppression. Based on Appellant’s evasive and implausible responses,
confirmed by the discovery of drug paraphernalia and multiple weapons, the
probation officers had a reasonable suspicion to search the lock box and view
the DVDs on Appellant’s computer. Appellant, who had signed the consent to
search documents as a condition of his probation, consented to the searches.
Considering the totality of circumstances, the court properly concluded that
Appellant consented to the search of his safe, CDs (DVDs) and computer.
Appellant asserts, but fails to develop, a supporting argument that he
should have received a Miranda warning earlier than when he did. (See
Appellant’s Brief, at 14-16). Accordingly, this claim is waived. See Pa.R.A.P.
2119(a), (b). In any event, Appellant’s claim would not merit relief. He fails
to assert that he made any incriminating statement in violation of his privilege
under the Fifth Amendment to the Constitution not to be compelled to
incriminate himself. Similarly, Appellant asserts an undeveloped argument
that the probation officers should have contacted their supervisor before his
arrest. There is no constitutional right to the observance of internal
administrative procedures.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/07/2018
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