Comm. v. McClellan, 2018 PA Super 14 (Jan. 26, 2018)

This was an appeal out of Montgomery County.  McClellan was a parolee, and he was swept up in a “sweep of local bars” by his parole officer.  The parole officer spotted McClellan exiting a bar at 11:30 p.m. though conditions of McClellan’s parole required him to be home by 8:00 p.m. and not be in drinking establishments.

When McClellan was stopped, though he displayed no outward signs of drinking, his parole officer frisked McClellan.  He found $320 cash, two cellphones, and a house key.  Suspecting that McClellan was engaging in other violations at the bar consistent with his history of drug dealing, the parole officer obtained permission to search McClellan’s approved residence (his grandmother’s) from his supervisor.  (Notably, at the outset of his parole, McClellan signed a parole agreement form consenting to warrantless searches of his residence.)

McClellan lived at his grandmother’s with his father and adult sisters. At the grandmother’s, the parole officer searched McClellan’s bedroom and found under his mattress a clear sandwich bag containing a trace amount of cocaine.  At the same time, a different parole officer went to the finished basement and discovered a loaded gun. Accordingly, McClellan was charged with violations of the Drug Act, for possession and paraphernalia, and he was charged as a Person Not to Possess a Firearm.  He filed a motion to suppress, which was denied, then he proceeded to a bench trial.  He was convicted of all counts and sentenced to 5 to 10 years on the gun charge.

On appeal, McClellan lodged two complaints.  First, there was not enough evidence to prove he had the power or intent to control the gun given where it was found and that DNA testing revealed more than one person had handled the gun.  Second,  there was no reasonable suspicion to believe contraband or evidence of other parole violations would be discovered at his grandmother’s.  The Superior Court was not persuaded by either complaint.

Respecting the first issue, it was established at trial that a DNA profile representing a mixture of at least three DNA contributors was pulled from the gun and McClellan could not be excluded as a contributor.  The Superior Court agreed with the trial court “that the DNA evidence strongly implicated [McClellan] as a possessor of the gun found in the basement of his approved residence.”  Though the Commonwealth may not have established actual possession over the gun, constructive possession was established.  The fact that another person may have also had control over the gun, the Superior Court reasoned, does not eliminate McClellan’s constructive possession of it.  The Superior Court found there was sufficient evidence for the trial court to convict.

Respecting the second issue, the Superior Court guided its analysis on the lawfulness of the search of McClellan’s residence by reference to 42 Pa.C.S. § 6153.  That section addresses the formulation of reasonable suspicion by a parole officer to support a property search without a warrant.  At the outset, the Superior Court noted that “[a] parolee has limited Fourth Amendment rights because a diminished expectation of privacy.”  Though a “‘parolee’s signing of a parole agreement giving his parole officer permission to conduct a warrantless search does not mean . . . that the parole officer can conduct a search at any time and for any reason,” here the Superior Court was satisfied that there was reasonable suspicion to search due to (1) the officer’s observations; (2) McClellan’s activities; (3) McClellan’s prior criminal and supervisory history; and (4) the officer’s need to verify compliance with parole supervision.  Thus, the search was lawful.

For practitioners, it is of note that Judge Ott wrote a concurrence expressing concern “over the use of the DNA comparison method referred to as ‘likelihood ratio,’ and trial counsel’s agreement to allow such evidence to be presented without apparent foundation.”  Judge Ott wrote:

In this matter, the entity that made the [DNA] calculations was not identified and there was no testimony as to how the relevant statistical analysis was achieved.  I believe prudence dictates that if such evidence is to be used in the future, there must be a record developed demonstrating methodology and the techniques used to arrive at the conclusion.

Judge Ott signaled that she, and perhaps others on the Superior Court, “would be hesitant to rely upon a secret methodology for conviction” in the future.