J-S32042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


1   The box is variously referred to as a lock box, a safe or a safety deposit box.
____________________________________
* 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




____________________________________________


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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