In the Interest of J.E. , 907 A.2d 1114 ( 2006 )

OPINION BY

JOHNSON, J.:

¶ 1 J.E., a minor, appeals from the juvenile court’s commitment order confining him to Youth Forestry Camp following a finding that he had committed delinquent acts and violated his probation. The juvenile court adjudicated J.E. delinquent for possession of a firearm by a minor and possession of a firearm without a license, after a probation officer found a firearm under the mattress where J.E. had been sitting. J.E. argues that the juvenile court erred in denying his motion to suppress the firearm and adjudicating him delinquent for carrying a firearm without a license where J.E., as a minor, was ineligible to obtain a valid firearm license. After study, we find that the juvenile court erred in denying J.E.’s motion to suppress the firearm as the probation officer did not have a reasonable suspicion that J.E. had engaged in criminal activity or that J.E. was in violation of his probation. Accordingly, we reverse the juvenile court’s commitment order and remand the case back to the juvenile court.

¶ 2 On February 10, 2005, Probation Officer Greg Willig went to a residence in the Beltzhoover section of Pittsburgh. Officer Willig was accompanied by Probation Officers Ray Bauer, Christine Lisko, and Robert Dassel along with Pittsburgh Police Officers J. Gagliardi and G. Scafeda. The officers went to the residence to serve an arrest warrant on J.E.’s brother (“Brother”), a juvenile. J.E.’s stepmother (“Stepmother”) answered the door and informed the officers that Brother was not home but that J.E. was upstairs in his bedroom. Officer Willig told Stepmother that the officers would still need to search the house for Brother.

¶ 3 Officer Willig, along with two other probation officers, went upstairs and found J.E. in his third-floor bedroom sitting on the edge of his bed watching television. Officer Willig told J.E. to stand up and then conducted a pat-down search. During the pat-down, Officer Willig stated that J.E. was very nervous and shaking. This raised Officer Willig’s suspicion that J.E. was hiding something. Officer Willig then lifted up the mattress on which J.E. had been sitting and found a gun.

¶ 4 On March 23, 2005, the Commonwealth filed a juvenile petition charging J.E. with one count each of possession of a firearm by a minor and possession of a firearm without a license. The Honorable Jill Rangos held a hearing on April 14, 2005. At the hearing, Officer Willig testified as to the search and seizure of the handgun. Officer Willig testified that he was the probation officer in charge of warrants for the county and that he was aware that J.E. was on probation. Based on prior experience, Officer Willig stated that when a juvenile is placed on probation, he/she is required to sign a conditions of supervision form which includes a consent to a search of his/her person at any time. Officer Willig further testified that he routinely frisks juveniles who are on probation when they are present during the service of a warrant as a way to ensure the safety of the officers present. Officer Wil-lig also stated that prior to the pat-down search, he had heard from an unknown informant that J.E. may have been involved in a shooting in Beltzhoover.

¶ 5 At the conclusion of Officer Wil-lig’s testimony, J.E. moved to suppress the evidence and for a directed verdict in his favor. The juvenile court denied both motions. Stepmother then testified that J.E. suffered from a shaking disease for which he had received medical treatment. No medical evidence was introduced and the juvenile court found this testimony to be unpersuasive. The juvenile court found that the Juvenile Act grants probation officers the right to search a juvenile on probation and that the probation officer had reasonable suspicion to search J.E. As a result, the juvenile court found that the Commonwealth had made a prima, facie case for the charges of possession of a firearm by a minor and possession of a firearm without a license. The juvenile court found J.E. delinquent and in violation of his probation.

¶ 6 J.E. now appeals, raising the following questions for our review:

I. DID THE TRIAL COURT ERR IN DENYING J.E.’S MOTION TO SUPPRESS THE FIREARM WHERE THE GUN WAS FOUND AS A RESULT OF JUVENILE PROBATION OFFICERS DECIDING TO DO AN UNWARRANTED AND UNREASONABLE SEARCH OF J.E. AND HIS SURROUNDING AREA, AND WHERE SUCH A SEARCH VIOLATED J.E.’S PRIVACY RIGHTS AS GUARANTEED BY THE UNITED STATES AND PENNSYLVANIA CONSTITUTIONS?

II. DID THE TRIAL COURT ERR IN ADJUDICATING J.E. DELINQUENT OF THE CRIME OF POSSESSION WITHOUT A LICENSE WHERE IT IS UNREASONABLE TO EXPECT THAT A MINOR COULD EVER HAVE A VALID FIREARM LICENSE?

Brief for Appellant at 5.

Our standard of review in addressing a challenge to a trial court’s denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Since the prosecution prevailed in the suppression court, we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradict-ed when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831, 842 (2003) (citations omitted).

¶ 7 In support of his first argument, J.E. contends that the juvenile court erred in denying his motion to suppress the firearm. Brief for Appellant at 11. J.E. argues that the probation officers conducted an unwarranted and unreasonable search of J.E. and his surrounding area in violation of the Fourth Amendment of the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Brief for Appellant at 17-18. Specifically, J.E. argues that he was not acting suspiciously and that the officers had no justification to believe that he was violating the terms of his probation. Brief for Appellant at 20-21. J.E. also argues that the protective sweep conducted by the probation officers was overly broad and did not meet constitutional requirements. Brief for Appellant at 18.

¶ 8 Initially, we conclude that the protective sweep doctrine is not applicable to this case. A protective sweep is “a quick and limited search of [the] premises, incident to an arrest and conducted to protect the safety of police officers or others.” Maryland v. Buie, 494 U.S. 325, 327, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (emphasis added). There are two levels of protective sweeps: (1) officers can, without probable cause or reasonable suspicion, look in closets and other spaces close to the place of arrest from which an attack could be launched and (2) officers can search for attackers further away from the place of arrest if they can sufficiently articulate specific facts that justify a reasonable fear for the safety of officers on the premises. See Commonwealth v. Taylor, 565 Pa. 140, 771 A.2d 1261, 1267 (2001). Here, the officers were in the residence based on a valid arrest warrant for Brother. However, the officers had not effectuated an arrest of Brother. As a proper protective sweep is based upon an initial arrest, we conclude the officers’ search of the residence for Brother does not implicate the protective sweep doctrine. See Buie, 494 U.S. at 333, 110 S.Ct. 1093 (concluding that the Fourth Amendment allows arresting officers to conduct a protective sweep “to ensure their safety after, and while making, the arrest.”) (emphasis added).

¶9 In the case at bar, the provisions of section 6304 of the Juvenile Act, which provides probations officers with the authority to search juveniles on probation, are controlling. Section 6304 states in relevant part:

(a.l) Authority to search.—

(1) Probation officers may search the person and property of children:

(i) under their supervision as delinquent children or pursuant to a consent decree in accordance with this section;

* :Jí * *

(2) Nothing in this section shall be construed to permit searches or seizures in violation of the Constitution of the United States or section 8 of Article I of the Constitution of Pennsylvania.

(3) No violation of this section shall constitute an independent ground for suppression of evidence in any proceeding.

(4) (i) A personal search of a child may be conducted by any probation officer:

(A)If there is a reasonable suspicion to believe that the child possesses contraband or other evidence of violations of the conditions of supervision.

* * * *

(vi) The existence of reasonable suspicion to search shall be determined in accordance with constitutional search and seizure provisions as applied by judicial decision. In accordance with that case law, the following factors, where applicable, may be taken into account:

(A) The observations of officers.

(B) Information provided by others.

(C) The activities of the child.

(D) Information provided by the child.

(E) The experience of the probation officer with the child.

(F) The experience of probation officers in similar circumstances.

(G) The prior delinquent and supervisory history of the offender.

(H) The need to verify compliance with the conditions of supervision.

* * * *

(c) Definitions. — As used in this section, the following words and phrases shall have the meanings given to them in this subsection:

“Personal search.” A warrantless search of a child’s person, including, but not limited to, the child’s clothing and any personal property which is in the possession, within the reach or under the control of the child.

42 Pa.C.S. § 6304.

¶ 10 The statute allows probation officers to conduct warrantless personal searches of probationers. See 42 Pa.C.S. § 6304(c); see also Commonwealth v. Moore, 805 A.2d 616, 619-20 (Pa.Super.2002) (concluding that the requirement that a probation officer obtain a warrant based upon probable cause prior to conducting the search does not apply). However, section 6304 also stipulates that prior to a search of the child, a probation officer must have “a reasonable suspicion to believe that the child possesses contraband or other evidence of violations of the conditions of supervision.” 42 Pa.C.S. § 6304(a.1)(4)(i)(A); see also Commonwealth v. Williams, 547 Pa. 577, 692 A.2d 1031, 1035-36 (1997) (concluding that a parolee is protected by the Fourth Amendment’s requirement that searches be reasonable and that a search is reasonable if the parole officer had a reasonable suspicion that the parolee had violated his parole); Moore, 805 A.2d at 619.

¶ 11 Section 6304 enumerates factors to be considered in determining whether reasonable suspicion exists. Here, the juvenile court relied upon subsections (a.1)(vi)(A), (B), (C), (F), and (H) to demonstrate that Officer Willig had a reasonable suspicion to search J.E. and the area within his reach. Trial Court Opinion (T.C.O.), 8/29/05, at 8-9. The juvenile court focused on the fact J.E. was shaking during the pat-down search which demonstrated to Officer Willig that J.E. was hiding something. T.C.O, 8/29/05, at 6. However, the threshold question in cases such as this is whether the probation officer had a reasonable suspicion of criminal activity or a violation of probation prior to the personal search. See Florida v. J.L., 529 U.S. 266, 271, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (reiterating that police must have reasonable basis for suspecting person of engaging in unlawful conduct prior to the frisk). Here, the only information Officer Willig had prior to the personal search that J.E. had engaged in criminal activity is a tip indicating J.E. had been involved in a recent shooting. Notes of Testimony (N.T.), 4/14/05, at 30-31. However, Officer Willig could not articulate whether this information was from a known or anonymous informant. N.T., 4/14/05, at 31 (“I don’t recall the source.”).

¶ 12 A tip can establish a basis for reasonable suspicion; however, the officer must be able to articulate the reliability of the informant. See Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (concluding that an informant’s veracity, reliability, and basis of knowledge are “highly relevant” in determining whether the informant has provided reasonable suspicion of criminal activity); see also Commonwealth v. Barber, 889 A.2d 587, 598-94 (Pa.Super.2005). A known informant can form the basis for reasonable suspicion as the police would know the identity of the person providing the tip and the basis of the knowledge. See Commonwealth v. Hayward, 756 A.2d 23, 36 (Pa.Super.2000) (“Identified citizens who report their observations of criminal activity to police are assumed to be trustworthy, in the absence of special circumstances.”) (citation omitted). Unlike a tip from a known informant, “an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity[.]” Alabama v. White, 496 U.S. 325, 329, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). If this information came from an anonymous tip, this tip must be sufficiently corroborated by independent police work to demonstrate that the tip was correct. See id. at 327, 110 S.Ct. 2412; see also Commonwealth v. Martin, 705 A.2d 887, 892 (Pa.Super.1997) (“A stop may be proper where the tip is sufficiently corroborated by independent police work giving rise to a reasonable belief that the tip was correct.”). Here, Officer Willig does not point to any specific and articulable facts which would reasonably suggest that this tip was correct. Cf. Williams, 692 A.2d at 1037 (concluding that parole officer had reasonable suspicion to search property of parolee after receiving anonymous tip from confidential informant and corroborating the tip with the local police); Shaw v. Pennsylvania Bd. of Probation and Parole, 744 A.2d 382, 385 (Pa.Cmwlth.2000) (concluding that parole officer had a reasonable suspicion that the parolee had violated conditions of parole after officer received anonymous letter stating parolee was dealing drugs and officer observed the unemployed parolee driving a sports car and wearing expensive clothes). Since Officer Willig did not identify the source of the information, there is no way for this Court to determine if the information was credible, assuming as we must, that a tip was, in fact, received. Since the officer could not demonstrate the reliability of the alleged tip, he failed to articulate a reasonable suspicion that J.E. had engaged in criminal activity or violated his probation.

¶ 13 The juvenile court also relied on the fact that J.E. signed a consent form allowing probation officers to conduct war-rantless searches as a term of his probation. T.C.O., 8/29/05, at 7. However, this consent does not allow a probation officer to conduct an unreasonable search. See 42 Pa.C.S. § 6304(a.1)(4)(i)(A) (“A personal search of a child may be conducted by any probation officer if there is a reasonable suspicion to believe that the child possesses contraband or other evidence of violations of the conditions of supervision.”) (emphasis added). Accordingly, the fact that J.E. had signed a consent form as a term of his probation was not enough to allow the officers to search J.E.’s person without a reasonable suspicion of wrongdoing.

¶ 14 The dissent cites to Samson v. California, — U.S.-, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) for the proposition “that parolees and probationers are simply not protected by the Fourth Amendment against unreasonable searches and seizures.” Dissenting Op. at 1122. Samson deals with the constitutionality of a California law which provides that every parolee upon release from prison “shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause.” 126 S.Ct. at 2196 (quoting CahPenal Code Ann. § 3607(a)). The Supreme Court of the United States found that a “suspicion less search” conducted under the authority of that statute did not violate the United States Constitution as the petitioner was unambiguously aware of the condition and accepted it. See id. at 2199. The Supreme Court never concludes that all parolees and probationers have no protection under the Fourth Amendment and in fact recognizes that “some States and the Federal Government require a level of individualized suspicion” in them supervisory system. See id. at 2201.

¶ 15 Unlike the legislature in California, our legislature has crafted a statute which allows a juvenile probationer the right to be free from unreasonable searches even after signing a consent form. See 42 Pa. C.S. § 6304; see also Williams, 692 A.2d at 1035 (recognizing that even though a probationer’s privacy interest is limited, the probationer is still “protected by the Fourth Amendment’s requirement that searches be reasonable.”) (citation omitted). The purpose of the statute, section 6304, is to indicate that a probation officer must have a reasonable suspicion that a child has violated the conditions of supervision before conducting a personal search. See 42 Pa.C.S. § 6304(a.l)(4)(i)(A). Here, Officer Willig could not articulate any reasonable suspicion that J.E. had engaged in criminal activity. Therefore, a personal search could not be conducted under the confines of section 6304.

¶ 16 However, a violation of section 6304 does not “constitute an independent ground for suppression of evidence in any proceeding.” 42 Pa.C.S. § 6304(a.l)(3). Nevertheless, section 6304 affirmatively recognizes that the authority given to probation officers to search juveniles on probation under this section does not permit searches and seizures in violation of the Constitutions of the United States and Pennsylvania. See 42 Pa.C.S. § 6304(a.1)(2). In effect, section 6304(a.1)(2) acknowledges that protections afforded probationers under the Constitutions of the United States and Pennsylvania against unreasonable searches and seizures trumps this statute.

¶ 17 In the case at bar, the information known prior to the search does not provide constitutionally adequate grounds for a search. Even though a probationer’s privacy interest is limited, the probationer does not relinquish “his Fourth Amendment right to be free from unreasonable searches.” Williams, 692 A.2d at 1036. Rather, the probationer is still “protected by the Fourth Amendment’s requirement that searches be ‘reasonable.’” Id. at 1035 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987)). Here, Officer Willig cited to the tip providing that J.E. may have been involved in a recent shooting. N.T., 4/14/05, at 30-31. However, as stated above, this tip was not demonstrably reliable. See Gates, 462 U.S. at 230,103 S.Ct. 2317. Officer Willig also testified that the officers in the home knew J.E. was on probation and that they “were going to search him ... [to] make sure he is following the rules of supervision and conditions of probation and for our safety[.]” N.T., 4/14/05, at 7.

¶ 18 Probation is “aimed at rehabilitating and reintegrating a law breaker into society as a law-abiding citizen ... [and] is deemed a constructive alternative to imprisonment.” Commonwealth v. Colon, 708 A.2d 1279, 1282 (Pa.Super.1998). Our Supreme Court has ruled that a probationer will have limited privacy rights but must still be afforded the protections of the Constitutions of the United States and Pennsylvania. See Williams, 692 A.2d at 1035. Allowing a probation officer to conduct a search of a probationer for no reason other than the person is on probation would take away the right of a probationer to be free from unreasonable searches. Therefore, an officer cannot search a child on probation just became he is on probation without articulating a reasonable suspicion that the child violated his probation or was involved in further wrongdoing. Here, the Commonwealth provided no evidence which would demonstrate J.E. had engaged in criminal activity or had violated his probation. Hence, we conclude that the pat-down search and the search of the immediate surrounding area was illegal and not in conformance with the Constitutions of the United States and Pennsylvania.

¶ 19 In conclusion, the juvenile court should have suppressed the gun found under the mattress on which J.E. had been sitting. As the gun should have been suppressed, we also conclude that J.E. should not have been found delinquent on the related charge of possession of a firearm without a license.

¶ 20 Based on the foregoing reasons, we reverse the commitment order and remand the case back to the juvenile court for further proceedings.

¶ 21 Order REVERSED. Case REMANDED for further proceedings in accordance with this Opinion.

¶ 22 McCAFFERY, J., files a Dissenting Opinion.