A parole agent may perform a protective frisk of a person present during a routine check of a parolee’s approved residence if the agent reasonably suspects that person is armed and dangerous, the Pennsylvania Superior Court held in Com. v. Mathis, __ A.3d __ (No. 2099 MDA 2014, filed Sept. 22, 2015). During a routine check of parolee Gary Waters’ residence in Harrisburg, Parole Agents Michael Welsh and Gregory Bruner discovered Waters and his guest, Darrin Mathis, in the kitchen. Because there was a strong odor of marijuana, Agent Welsh took Waters into the living room and handcuffed him. The agents observed Mathis acting nervously and holding his jacket against his body “like it was a baby.” Agent Welsh observed a bulge in the jacket, reached out to touch it and felt what he believed was the handle of a firearm. Agent Welsh wrested the jacket from Mathis, threw it on the floor and confirmed the presence of a firearm. Harrisburg police were summoned and Mathis was arrested for illegally possessing a firearm. Mathis moved to suppress the evidence, which the trial court denied. Mathis appealed his subsequent conviction to the Superior Court.
A unanimous panel, in an opinion authored by Judge Ford Elliott, affirmed Mathis’ conviction and held that the evidence was admissible. The Court recognized that the Prisons and Parole Code speaks in terms of a parole agent’s police power and authority with respect to supervision of parolees. Nevertheless, the Court concluded, based on its survey of similar cases from other states, that parole officers must have “concomitant authority to conduct a weapons frisk of a non-parolee when the facts and circumstances would warrant a reasonably prudent police officer in doing the same.” Accordingly, the Court held that parole agents have “ancillary authority to conduct a weapons frisk of any person present, during an arrest or home visit, where the parole agent has a reasonable suspicion that a person searched may be armed and dangerous.” The panel further held that the circumstances presented in this case, including Mathis’ nervous demeanor and furtive behavior with his jacket, which had a discernible bulge, warranted the parole agents’ belief that their safety or that of others was in danger.