J-S57027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 2132 EDA 2016
    ROBERT MOKSHEFSKY

                  Appeal from the Order Entered June 21, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010506-2015


BEFORE: GANTMAN, P.J., PANELLA, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                             FILED JANUARY 10, 2018

       The Commonwealth of Pennsylvania appeals from the order entered in

the Philadelphia County Court of Common Pleas granting, in part, the

suppression motion of Appellee, Robert Mokshefsky.1 Relevant to the

Commonwealth’s challenge on appeal, the court suppressed a gun discovered

in a car driven by Appellee to a parole meeting. As a condition of his parole,

Appellee was forbidden to drive and carry prohibited offensive objects.

Appellee walked into his parole office—carrying brass knuckles and car keys.

Somehow, Appellee did not expect the probation officer to investigate these

items. Surprisingly, the suppression court agreed with that position. We

reverse.
____________________________________________


1The Commonwealth has certified that the suppression order substantially
handicaps the prosecution, and that the appeal is not intended for delay
purposes. Thus, we may review it. See Pa.R.A.P. 311(d).
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      We take the relevant facts and procedural history from the suppression

court’s opinion.

            On August 19, 2015, while substituting for Appellee’s
      assigned [state] parole officer, Agent [Bernard] McCole met
      Appellee in the waiting room of the Philadelphia parole office. As
      [t]he Appellee walked through the metal detector, it alerted. Prior
      to entering the metal detector, Appellee emptied his pockets,
      revealing a set of keys and a car door electronic key fob.

             Appellee indicated that he had nothing on him that would
      cause the machine to activate. Agent McCole instructed Appellee
      to go through the machine several times. Each time it sounded an
      alert. As a result, the agent patted down Appellee and recovered
      a set of brass knuckles in Appellee’s possession. Agent McCole
      then placed Appellee in handcuffs and placed him in the duty room
      since possession of the brass knuckles constituted a parole
      violation.[]

            After Appellee was handcuffed, another parole agent
      consulted with a supervisor who suggested that Appellee be
      queried about his possession of the keys and the key fob to an
      automobile. Appellee replied that he had been dropped off at the
      parole office by his girlfriend. This response piqued the suspicion
      of the agents because they believed that Appellee had lied about
      how he got to the office and had driven there in violation of a
      condition of parole, given that he had possession of the key fob to
      the vehicle. Agent McCole accompanied by another agent took
      Appellee’s keys and, using the key fob, walked to the parking lot,
      depressing the car alarm on the fob. In doing so, a car alerted.
      The agents then walked over to the vehicle and used the key fob
      to open the trunk and unlock the doors, intending to search the
      vehicle. Before searching the trunk, Agent McCole looked into the
      passenger compartment of the vehicle and observed knives in the
      front center console.

             The agents then entered the vehicle and conducted a search
      and recovered a silver []9[-]millimeter hand gun in a
      compartment situated between the driver’s and passenger’s seat.
      The agents flagged down a police cruiser so that its officers could
      search the car and recover the gun because, by regulation, parole
      officers must contact the authorities upon discovering evidence of

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        a crime. The police did not confiscate the knives because they did
        not consider them to be illegal. Instead, the agents took
        possession of the knives as their possession constituted a parole
        violation.

              Agent McCole conceded [] that he had no information that
        the car searched contained contraband or was in any way
        connected to Appellee. He further states that he did not obtain a
        search warrant before searching the car because it was his belief
        that the car could be searched without one. The agent added that
        he believed Appellee had lied when he said he had nothing in his
        pockets, after being found in possession of the brass knuckles and
        also about how he traveled to the parole office.

Suppression Court Opinion, 1/11/17, at 2-3.

        The Commonwealth charged Appellee with multiple violations of the

Pennsylvania Uniform Firearms Act of 1995. Subsequently, Appellee filed a

motion to suppress the gun, as well as statements he made to the parole

officers. Following a hearing, the suppression court granted Appellee’s motion

in relation to the gun, finding the parole officer lacked reasonable suspicion to

search Appellee’s vehicle. This appeal follows.

        On appeal, the Commonwealth sets forth two arguments to support their

claim that the suppression court erred by suppressing the gun. First, 2 the

Commonwealth contends the parole officer had reasonable suspicion to search

the vehicle based upon his observation of knives in plain view in the vehicle.

Next, the Commonwealth claims Appellee did not have standing to challenge

the search of the vehicle because Appellee did not have a privacy interest in

the vehicle.


____________________________________________


2   We have reordered these arguments for ease of disposition.

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      Our scope and standard of review following an order granting a

suppression motion are as follows.

      When reviewing the propriety of a suppression order, an appellate
      court is required to determine whether the record supports the
      suppression court’s factual findings and whether the inferences
      and legal conclusions drawn by the suppression court from those
      findings are appropriate. Because Appellee prevailed in the
      suppression court, we may consider only the evidence of the
      defense and so much of the evidence for the Commonwealth as
      remains uncontradicted when read in the context of the record as
      a whole. Where the record supports the factual findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.
      However, where the appeal of the determination of the
      suppression court turns on allegations of legal error, “[t]he
      suppression court’s conclusions of law … are not binding on an
      appellate court, whose duty it is to determine if the suppression
      court properly applied the law to the facts.” As a result, the
      conclusions of law of the suppression court are subject to plenary
      review.

Commonwealth v. Salter, 121 A.3d 987, 992 (Pa. Super. 2015) (citation

omitted; brackets in original).

      Our review of the record with respect to the suppression court’s factual

findings reveals that the court’s findings of fact are traceable to testimony in

the record. Accordingly, we focus our attention to the propriety of the court’s

legal conclusions. We find the court’s conclusion that the parole agent lacked

the requisite reasonable suspicion to search the vehicle erroneous.

      Individuals under parole supervision have limited rights against search

and seizure. See Commonwealth v. Williams, 692 A.2d 1031, 1035 (Pa.

1997). “Essentially, parolees agree to endure warrantless searches based only

on reasonable suspicion in exchange for their early release from prison.”


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Commonwealth v. Colon, 31 A.3d 309, 315 (Pa. Super. 2011) (citation

omitted). State parole agents are permitted to search a parolee’s property “if

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

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

evidence of violations of the conditions of supervision.” 61 Pa.C.S.A. §

6153(d)(2).

      While the determination of whether reasonable suspicion exists
      should be evaluated in light of the totality of the circumstances,
      under section 6153(d)(6) …

      the following factors, where applicable, may be taken into
      account:

      (i) The observations of agents.
      (ii) Information provided by others.
      (iii) The activities of the offender.
      (iv) Information provided by the offender.
      (v) The experience of agents with the offender.
      (vi) The experience of agents in similar circumstances.
      (vii) The prior criminal and supervisory history of the offender.
      (viii) The need to verify compliance with the conditions of
      supervision.

Commonwealth v. Sperber, ___ A.3d ___, ___, 2017 WL 6331100, *3 (Pa.

Super., filed December 12, 2017) (citing 61 Pa.C.S.A. § 6153(d)(6)).

      Here, as discussed above, the suppression court concluded the parole

agent’s search of the vehicle was not supported by reasonable suspicion. The

court inferred Appellee had been driving the car, but concluded the agent

lacked reasonable suspicion to believe there was any contraband inside the




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vehicle at the time he decided to conduct the search. See Suppression Court

Opinion, 1/11/17, at 6.

      However, the court’s own recitation of the facts strongly supports Agent

McCole’s claim of reasonable suspicion. Appellee walked into a meeting with

parole officers carrying brass knuckles, in clear violation of the conditions of

his parole. Upon further search, the agents found a car key and fob on

Appellee, which he claimed belonged to his girlfriend’s vehicle. As a condition

of his parole, Appellee was not permitted to drive, and when asked, Appellee

denied driving to the parole office and denied that the vehicle was on the

premises. However, upon activating the alarm on the fob, the vehicle altered

the agents to its presence within the parking lot. Given the totality of the

circumstances, Agent McCole clearly had reasonable suspicion that additional

parole violations, including proof that Appellee drove the vehicle to the parole

meeting, may be uncovered upon a search of the vehicle.

      Further, in contradiction to the suppression court’s conclusion, the

statute does not specifically require a parole officer to have reasonable

suspicion at the time they decide to perform a search. Rather, the statute

provides the parole officer must have reasonable suspicion at the time the

search commences. See § 6153(d)(2). Therefore, because there is no legal

support for the suppression court’s assertion that the search of the vehicle




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occurred prior to the actual entry of the agents into the vehicle, 3 Agent

McCole’s observation of the knives in plain view in the center console prior to

entering the vehicle should have been considered in an analysis of reasonable

suspicion.

       Based upon the totality of the circumstances, including a consideration

of the factors set forth in § 6153(d)(6), we conclude Agent McCole had ample

reasonable suspicion to believe Appellee’s vehicle contained contraband, and

therefore, he was permitted to search it. Thus, we find the court erred by

suppressing evidence of this search. Therefore, we reverse the suppression

court’s order.4

       Order reversed. Case remanded for proceedings consistent with this

decision. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/18

____________________________________________


3The suppression court found the act of unlocking the doors of the car and
popping the trunk with a key fob constituted a search in itself. See
Suppression Court Opinion, 1/11/17, at 4.

4 Given our disposition, we need not address the Commonwealth’s second
issue on appeal.

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