J-A06027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                        Appellee

                   v.

ANTOINE BLACK

                        Appellant                    No. 1316 MDA 2015


           Appeal from the Judgment of Sentence July 6, 2015
            In the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0000977-2014


BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                          FILED AUGUST 16, 2016

     Antoine Black appeals from the judgment of sentence imposed by the

Court of Common Pleas of Dauphin County for firearm and drug-related

offenses. Upon careful review, we reverse.

     The trial court set forth the factual history of the case as follows:

     At the suppression hearing held on November 25, 2014, the
     Commonwealth presented Dauphin County Adult Probation
     Officers (“PO”) Rick Anglemeyer and Kurt Zitsch as witnesses.
     PO Anglemeyer was Black’s supervising PO on the date of his
     arrest, January 9, 2014. During a routine check, PO Anglemeyer
     arrived at Black’s approved address, 2145 N. Fifth Street,
     Harrisburg,   Pennsylvania   at    approximately   1:15   p.m.
     Anglemeyer was accompanied by PO Zitsch when they knocked
     on the residence front door which was opened by a female child
     3-4 years of age. The agents identified themselves and asked if
     Black was home. The child answered “yes” and, at the same
     time, another female who was approximately 20 years old
     appeared on the landing of the stairs and said “yeah, he’s up
     here.”
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     PO Anglemeyer observed Black’s mother asleep on the couch in
     the living room and proceeded up the stairs as PO Zitsch
     engaged her in conversation. When PO Anglemeyer reached the
     bedroom, the door was ajar allowing him to see Black lying face
     down on his bed making hand movements.                When PO
     Anglemeyer knocked, Black rolled over, sat up and took off his
     blankets to reveal that he was only wearing boxer shorts.

     While PO Anglemeyer was looking around his room, he observed
     a Kay Jewelers box and a video console which he had not seen
     during prior visits. Anglemeyer stated that he found this notable
     because, to his knowledge, Black was not employed. Based on
     PO Anglemeyer’s observation that he was acting nervous, he
     requested consent to look around the room especially given that
     Black admitted during a September 12, 2013 visit that he had
     been selling marijuana. Black gave his consent.

     PO Zitsch proceeded to search a walk-in closet on the other side
     of the room. Near the closet, in plain view on a windowsill,
     Zitsch observed a digital scale with white powder residue on it
     and plastic sandwich baggies. He informed Anglemeyer of his
     discovery and, based on the findings, the POs detained him
     without incident.

     After detaining Black, PO Anglemeyer asked him if there was any
     other illegal contraband in the residence to which Black replied
     that he had $1200 in cash in a pair of pants nearby but, it was
     not “illegal.” However, after previously admitting to selling
     marijuana, a condition had been added to his probation that
     prohibited him from having any more than $50 on his person
     without validation of source.      PO Zitsch checked the pants
     pockets but found nothing. Black then said it was in the pocket
     of a black coat that was hanging on the walk-in closet door.
     While looking for the money in the jacket pocket, PO Anglemeyer
     observed the corner of a plastic sandwich baggie and, upon
     retrieval of the bag, he discovered what he believed to be a large
     amount of crack cocaine. At that point in time, the Harrisburg
     Police were called to the scene. The police arrived with a
     warrant to search the residence. The search uncovered an
     additional baggie containing a large amount of crack cocaine, a
     .45 caliber handgun and $9,974 in cash in another jacket pocket.

     At the suppression hearing, Black presented the testimony of his
     mother, Michelle Black (“Ms. Black”) and testified on his own
     behalf relaying their version of the January 9, 2014 encounter


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     with POs Anglemeyer and Zitsch. Ms. Black confirmed that she
     had been lying on her couch when the POs arrived as she had
     recently had back surgery.       She also confirmed that her
     granddaughter opened the door before she could answer it. Ms.
     Black said that when the door opened the men went past her
     and ran up the stairs as she was asking who they were and what
     they wanted. She acknowledged that the men said they were
     with probation but denied that they were given permission to go
     upstairs. Ms. Black was familiar with PO Anglemeyer from
     previous probationary home visits. Ms. Black had not seen PO
     Zitsch before and she denied that he stopped to speak with her
     upon entering the house.

     Black testified to his version of his incident, as well. He stated
     that he was asleep on his bed when the POs knocked on the door
     and entered without announcing their position as probation
     officers. Black was not familiar with PO Zitsch but he did know
     PO Anglemeyer as his supervising officer. He could not recall a
     time when PO Anglemeyer had come up to his bedroom during a
     home visit.

     Black said that when PO Anglemeyer entered the room he pulled
     off his blankets and grabbed his iPhone and proceeded to go
     through it. When he moved to find out if his mother had let the
     POs in, Black said that PO Anglemeyer told him to sit down and
     don’t move.

     Black asked PO Zitsch if he was his new PO as he said he was
     being reassigned. According to Black, PO Zitsch said no and
     then went into the bedroom closet and searched through boxes
     where he found a scale and plastic baggies. Black said that PO
     Zitsch then went through other items in the closet including a
     hooded sweatshirt in which he found illegal narcotics. He was
     handcuffed once the drugs were found and the police were called
     to the scene.

     Black denied providing any verbal consent to search the
     premises. Regarding the pants searched by the POs, Black said
     that he said nothing to them about having $1200; rather, he
     asked for the pants because he was only dressed in his boxer
     shorts, but there might be a couple of hundred dollars in them.
     He also stated, in contrast to PO Anglemeyer’s testimony, at the
     time of arrest he had been employed as a loader at Cresson Park
     since September.



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Trial Court Opinion, 12/7/15, at 4-7 (internal citations omitted).

        Black filed an omnibus pretrial motion, and a suppression hearing was

held on November 25, 2014.               The trial court denied the motion, and

following a stipulated bench trial, Black was convicted of possession of

firearms,1 possession with intent to manufacture or deliver a controlled

substance,2 and unlawful possession of drug paraphernalia.3             Black was

sentenced to an aggregate term of 5 to 10 years’ imprisonment.

        On appeal, Black raises the following issue: whether under the facts

set forth above, his state and federal constitutional rights were violated by

the parole officers’ entry into his mother’s home, and their subsequent

search of his person and his room without a warrant.

        An appellate court’s review is “limited to determining whether the

record supports the findings of fact of the suppression court and whether the

legal conclusions drawn from those findings are correct.” Commonwealth

v. James, 69 A.3d 180 (Pa. 2013) (citing Commonwealth v. Briggs, 12

A.3d 291, 320-21 (Pa. 2011)).              Factual findings are binding, but legal

conclusions are reviewed de novo. Id.

        A parolee has limited Fourth Amendment rights because of a
        diminished expectation of privacy.    Commonwealth v.
____________________________________________


1
    18 Pa.C.S. § 6105(a)(1).
2
    35 Pa.C.S. § 780-113(a)(30).
3
    35 Pa.C.S. § 780-113(a)(32).



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       Williams, 692 A.2d 1031, 1035 (Pa. 1997).           A “parolee’s
       signing of a parole agreement giving his parole officer
       permission to conduct a warrantless search does not mean either
       that the parole officer can conduct a search at any time and for
       any reason or that the parolee relinquishes his Fourth
       Amendment right to be free from unreasonable searches.” Id.
       at 1036.

Commonwealth v. Coleman, 130 A.3d 38, 45 (Pa. Super. 2015).4

       However, a probation officer may conduct a property search “if there is

reasonable suspicion to believe that the real or other property in the

possession or under the control of the offender contains contraband or other

evidence of violations of the conditions of supervision.”       42 Pa.C.S. §

9912(d)(2). A probation officer may also conduct a personal search “if there

is reasonable suspicion to believe that the offender possesses contraband or

other evidence of violations of the conditions of supervision.” 42 Pa.C.S. §

9912(d)(1)(i).

       It is clear from the record below that Black was serving a sentence of

probation, and that POs Anglemeyer and Zitsch did not have a search

warrant when they came to Black’s mother’s house for a routine home

check.   Therefore, they first needed to obtain consent to enter the house.

PO Anglemeyer testified that a young girl “[a]pproximately three, four years

of age” answered the door when they first arrived.          N.T. Suppression

____________________________________________


4
  The constitutional rights of a probationer are indistinguishable from those
of a parolee. See Williams, supra. Accordingly, although we refer to
cases involving both probation and parole, the underlying principles are the
same.



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Hearing, 11/25/14, at 5-6. Upon asking if Black was home, PO Anglemeyer

said that “[a]t that point not only she answered, but another older female,

approximately maybe 20 years of age, was standing on the landing of the

stairs in clear view of myself, said, yeah, he’s up here.” Id. The POs took

both confirmations of Black’s presence in the house as consent, and they

entered the home and went upstairs to Black’s private bedroom.          Id.

However, as explained herein, we conclude that neither individual’s consent

was valid.

     With regard to the 3- to 4- year-old girl, our Supreme Court has held

that “[a]lthough age is one element to acknowledge in ascertaining whether

consent was given willingly, minority status alone does not prevent one from

giving consent.” Commonwealth v. Maxwell, 477 A.2d 1309, 1315 (Pa.

1984). While age is one consideration in the totality of the circumstances

determining the validity of a minor’s consent, maturity and authority are

also important factors. Compare In the Interest of Jermaine, 582 A.2d

1058, 1064 (Pa. Super. 1990) (16½-year-old juvenile was sufficiently

mature to voluntarily consent to search of her bag), with Commonwealth

v. Garcia, 387 A.2d 46, 55 (Pa. 1978) (16-year-old daughter did not have

equal dominion over home with her mother. “The [mother] had the power

to determine the extent of her daughter’s authority to admit people to the

house and therefore her consent was ineffective.”)

     Other states have held that all children under a specific age lack both

the maturity and the authority to consent to a search of a parent’s home.

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Davis v. State, 422 S.E.2d 546 (Ga. 1992). In holding that a 10 year-old

child could not give valid consent, the Georgia Supreme Court stated that

“[t]he younger a child the less likely that he or she can be said to have the

minimal discretion required to validly consent to a search, much less waive

important constitutional rights.” Id. at 550.

      In the case sub judice, the totality of the circumstances indicates that

the young child could not give valid consent. If the 16-year-old daughter in

Garcia, supra did not have the authority to consent, and the 10-year-old

son in Davis, supra was not mature enough to consent, it defies logic that a

3- to 4-year-old child could consent to search the house. Additionally, while

it is possible for a homeowner to leave a child in charge during his or her

absence, see State of Iowa v. Folkens, 281 N.W.2d 1 (Iowa 1979) (14-

year-old son in charge of house while mother was absent gave legal

consent), in this case Black’s mother, the child’s grandmother, was on the

couch in the adjacent room.    As such, any potential consent given by the

child was overridden by the lack of consent by Black’s mother.

      In light of the cases cited above and common experience with respect

to the maturity level of young children, we conclude that a 3- to 4-year-old

child lacks the capacity to grant permission to search a residence.

      We further conclude that the unidentified 20-year-old woman on the

landing of the stairs did not have apparent authority to consent to POs

Anglemeyer and Zitsch to enter the home. The Pennsylvania Supreme Court

has held that “[t]hird party consent is valid when police reasonably believe a

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third party has authority to consent.”     Commonwealth v. Strader, 931

A.2d 630, 634 (Pa. 2007) (citing United States v. Matlock, 415 U.S. 164,

171 (1974)). The exception turns on whether, given the available facts, a

person of reasonable caution would believe the third party has authority

over the premises.    Id.   The determination of apparent authority must be

based on the totality of the circumstances, and if it is ambiguous whether

the third party has apparent authority, “a police officer should make further

inquiries to determine the status of the consenting party.” Commonwealth

v. Blair, 575 A.2d 593, 598 (Pa. Super. 1990).

     In Strader, supra, parole officers received a tip that Cecil Shields, a

parole absconder with an active warrant, was residing at an apartment in

Wilkinsburg. The parole agent provided the tip to a detective, who went to

the apartment along with other officers. From prior contacts, the detective

knew that Vincent Strader was the leaseholder. When the officers arrived at

the apartment, a man named Thornton answered the door. Police showed a

wanted poster of Shields to Thornton, who stated that he did not know him.

     Thornton stated that he and another man were staying at the

apartment temporarily.      When the detective asked Thornton if he was in

charge of the apartment, he responded that he was.       The detective then

asked Thornton for permission to search the apartment for Shields, and

Thornton consented.      Upon entering the living room an officer saw two

baggies containing a light brown substance, and another officer found a

digital scale in the kitchen sink with white residue on it. After obtaining a

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search warrant for the apartment, officers found cocaine, heroin, a handgun

and items associated with packaging drugs.         Strader was convicted of

several offenses and this Court affirmed his judgment of sentence.          On

appeal, the Supreme Court affirmed “the           finding below that police

reasonably believed Thornton had authority to consent to search.” Strader,

supra at 429.

      The conduct of POs Anglemeyer and Zitsch in the instant matter falls

far short of the officers’ actions in Strader, and as such does not support

the apparent authority exception.        Whereas the officers in Strader

questioned Thornton to determine if he was in charge of the apartment,

here, both POs testified that they did not know who the 20-year-old woman

was, and still did not know at the time of the suppression hearing.       N.T.

Suppression Hearing, 11/25/14, at 5-6.      PO Anglemeyer testified that he

believed her to be Black’s sister, but there is no evidence in the record

substantiating that belief. Id. As opposed to Thornton, the woman was not

the one who answered the door, diminishing the chance that she was in

charge of the household. Id. Her only statement to the POs was to confirm

that Black was inside the house, far short of actual consent to enter. Finally,

as stated above, Black’s mother, an individual familiar to PO Anglemeyer

from prior visits, was on the couch in the next room. Id. Therefore, unlike

Thornton, who had been put in charge of Strader’s apartment in his absence,

the true homeowner was present, and her failure to consent trumps any

apparent authority POs Anglemeyer and Zitsch may have believed the

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unidentified woman had.     It was unreasonable for POs Anglemeyer and

Zitsch to presume that the woman had authority based on her one

statement regarding Black’s location without any further inquiry, and as such

the apparent authority exception does not apply. Blair, supra.

     As previously noted, county probation officers may conduct personal

and property searches if there is reasonable suspicion that the offender

either possesses or controls contraband or other evidence of violations. See

42 Pa.C.S. §§ 9912(d)(1)(i), (2).

     In Commonwealth v. Wilson, 67 A.3d 736 (Pa. 2013), our Supreme

Court held:

     Section 9912(d)(2) is a specific provision addressing a narrow
     circumstance: the conditions under which a county probation
     officer may conduct a warrantless search, including a
     requirement that the probation officer must possess reasonable
     suspicion that the property contains contraband or other
     evidence of violations of the probationer’s terms of probation.
     The provision is clear and unambiguous and lists no exception.
     The reason for the restrictions . . . are obvious: searches
     implicate constitutional rights (even though the Fourth
     Amendment rights of probationers are diminished).

Id. at 744.

     Here, the probation officers undertook a warrantless, suspicionless

search of Black’s person and property. After being let in by a 3- to 4-year

old child, they ran past Black’s mother who asked, “what are you doing

going up my steps?” N.T. Suppression Hearing, 11/25/14, at 37. They went

upstairs, opened the partially closed bedroom door, and searched his person

and property.


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     This Court has held that routine home visits by parole agents are not

searches within the meaning of the Fourth Amendment. Commonwealth v.

Smith, 85 A.3d 530, 537 (Pa. 2014). Here, PO Anglemeyer testified that he

and his partner “were out doing routine filed contacts where we would go to

[d]efendants’ houses and have regular probation contact with them.

Approximately 1315 hours, we stopped at the [Black’s] house to attempt a

home contact.” N.T. Suppression Hearing, 11/25/14, at 5-6. However, we

agree with Black that what took place was not a routine home check.

     Black’s mother testified that in the past, when PO Anglemeyer came to

the house, he would ask for Black.    She would then call for her son, who

would come downstairs to meet with PO Anglemeyer.        Officers had never

gone straight up to his room before. Id. at 37.

     A comparison of the facts of Smith with the instant matter is

instructive. In Smith, agents went to a parolee’s house on December 21,

2011, for a routine visit as part of the City of Chester’s Threat Initiative

under which “high risk offenders . . . who have numerous convictions for

drugs sales and/or gun possession, have their residences checked.” Smith,

85 A.3d at 532.    Shortly before the visit, one of the agents received an

anonymous tip that Smith was selling large amounts of marijuana.

     Agents arrived at Smith’s home and he allowed them to enter. As the

agents walked through the house, they passed the basement door and

noticed the odor of unburnt marijuana. They opened the door and the odor




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became stronger. One of the agents went down the stairs and found a large

quantity of marijuana along with money, a scale and unused baggies.

      Smith was later arrested and prior to trial sought to suppress evidence

obtained during the search of his residence.          The trial court denied

suppression and found him guilty of possession with intent to deliver. On

appeal, this Court affirmed, noting that the parole agents’ actions in walking

through the house did not constitute a search.

      During this lawful visit, Agent Peterson smelled marijuana
      emanating from Appellant’s basement, and at that juncture, they
      developed the requisite reasonable suspicion to conduct a search
      for the marijuana. Notably, the ‘plain view’ doctrine renders a
      search and seizure permissible where: (1) the government
      officials have not violated the Fourth Amendment in arriving at
      the location from which the item could be viewed; (2) the item is
      in plain view; (3) the incriminating character of the item is
      immediately apparent; and (4) the government officials have a
      lawful right of access to the item itself. [] Given that the parole
      agents were visiting Appellant at his residence in accordance
      with their supervisory duties, the smell of marijuana gave rise to
      reasonable suspicion for the agents to conduct a search for the
      contraband that was ultimately located in the basement.

Smith, supra at 537 (internal quotations and citations omitted).

      In Smith, the parole agents conducted their home visit based on the

high-crime initiative and a recent tip that the parolee was selling large

quantities of marijuana.    In contrast, the only reason advanced by the

Commonwealth in this case is that during a visit almost four months before,

Black had admitted to PO Anglemeyer that he had sold marijuana. A second

significant difference is that while Smith voluntarily allowed the agents into a

private residence, probation officers did not have consent to enter Black’s


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home. Once inside, the agents in Smith conducted a plain view check of the

house.     However, in this case, officers went up the stairs, opened the

bedroom door that was partially shut, and proceeded to search Black’s

clothing and his room.

       Unlike Smith, where the agents developed reasonable suspicion to

search based on the odor of the marijuana,5 the Commonwealth presented

no evidence of reasonable suspicion to search Black’s mother’s home,

Black’s bedroom or his person.          Accordingly, the evidence seized and any

incriminating statements made by Black should have been suppressed. See

Wilson, supra.

       The   officers’   failure   to   obtain     consent   to   enter   the   home   is

compounded by the failure to establish that the officers obtained consent to

enter Black’s bedroom. PO Anglemeyer testified:

       [Black’s] door was slightly ajar a couple of inches. I was able to
       see in there. I knocked on his door. I was able to see him, you
       know. He was on his stomach, facing away, laying on his bed
       doing something with his hands, movements with his hands.

       So I had announced – he asked who it was. I announced
       probation. I walked in when I saw him making movements with
       his hands. He turned over, sat up, took his blankets off himself.

N.T. Suppression Hearing, 11/25/14, at 7.

       On cross-examination, PO Anglemeyer could not say for certain that

Black gave him permission to enter his room.                       Id. at 18.      The
____________________________________________


5
  “Plain smell” is analogous to the concept of “plain view.”                       See
Commonwealth v. Copeland, 955 A.2d 396, 401 (Pa. Super. 2008).



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Commonwealth’s evidence that Black might have given the officers consent

to enter his room is insufficient to meet its burden to establish consent in

the absence or reasonable suspicion or exigent circumstances.

     Although PO Anglemeyer could not say whether Black consented to the

officers’ entry into his room, he did testify that Black consented to the

search of his room and its contents. Black denied the officers asked him for

consent to search. Id. at 47. The conflicting testimony with respect to the

search of the room is of no moment because the illegal entry of the officers

into the house and bedroom requires the suppression of all evidence.

     With respect to this issue, our Supreme Court has noted:

     Where . . . a consensual search has been preceded by an
     unlawful seizure, the exclusionary rule requires suppression of
     the evidence obtained absent a demonstration by the
     government both of a sufficient break in the causal chain
     between the illegality and the seizure of evidence, thus assuring
     that the search is not an exploitation of the prior illegality, and of
     voluntariness.

Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000) (citation

omitted).

     Additionally, we note that the Commonwealth did not assert the

existence of exigent circumstances that would permit the warrantless entry

into Black’s mother’s home.      As this Court has recognized, even where

officers have probable cause at the time of a warrantless entry, the

Commonwealth must “demonstrate exigent circumstances sufficient . . . to

overcome    the   strong   presumption   that   the   warrantless   invasion   of



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Appellant’s home was illegal.” Commonwealth v. Waddell, 61 A.3d 198,

216.

       For the reasons set forth herein, the trial court erred by admitting into

evidence the items obtained from the search of Black’s person and

belongings.

       Judgment of Sentence reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/16/2016




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