42c9912s

§ 9912.  Supervisory relationship to offenders.

(a)  General rule.--Officers are in a supervisory relationship with their offenders. The purpose of this supervision is to assist the offenders in their rehabilitation and reassimilation into the community and to protect the public.

(b)  Searches and seizures authorized.--

(1)  Officers and, where they are responsible for the supervision of county offenders, State parole agents may search the person and property of offenders in accordance with the provisions of this section.

(2)  (i)  Officers may search, in accordance with the provisions of this section, the person and property of any offender who accepts ARD as a result of a charge of a violation of 18 Pa.C.S. Ch. 31 (relating to sexual offenses) if the court has determined that the offender shall be subject to personal and property searches as a condition of the offender's participation in the ARD program.

(ii)  The court shall notify each offender so offered ARD, prior to admission to an ARD program, that the offender shall be subject to searches in accordance with this section.

(iii)  Nothing in this section shall be construed to permit searches or seizures in violation of the Constitution of the United States or section 8 of Article I of the Constitution of Pennsylvania.

(c)  Effect of violation.--No violation of this section shall constitute an independent ground for suppression of evidence in any probation and parole or criminal proceeding.

(d)  Grounds for personal search.--

(1)  A personal search of an offender may be conducted by an officer:

(i)  if there is a reasonable suspicion to believe that the offender possesses contraband or other evidence of violations of the conditions of supervision;

(ii)  when an offender is transported or taken into custody; or

(iii)  upon an offender entering or leaving the securing enclosure of a correctional institution, jail or detention facility.

(2)  A property search may be conducted by an officer 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.

(3)  Prior approval of a supervisor shall be obtained for a property search absent exigent circumstances. No prior approval shall be required for a personal search.

(4)  A written report of every property search conducted without prior approval shall be prepared by the officer who conducted the search and filed in the offender's case record. The exigent circumstances shall be stated in the report.

(5)  The offender may be detained if he is present during a property search. If the offender is not present during a property search, the officer in charge of the search shall make a reasonable effort to provide the offender with notice of the search, including a list of the items seized, after the search is completed.

(6)  The existence of reasonable suspicion to search shall be determined in accordance with constitutional search and seizure provisions as applied by judicial decision. In accordance with such case law, the following factors, where applicable, may be taken into account:

(i)  The observations of officers.

(ii)  Information provided by others.

(iii)  The activities of the offender.

(iv)  Information provided by the offender.

(v)  The experience of the officers with the offender.

(vi)  The experience of officers in similar circumstances.

(vii)  The prior criminal and supervisory history of the offender.

(viii)  The need to verify compliance with the conditions of supervision.

(e)  Nonresident offenders.--No officer shall conduct a personal or property search of an offender who is residing in a foreign state except for the limited purposes permitted under the Interstate Compact for the Supervision of Parolees and Probationers. The offender is held accountable to the rules of both the sending state and the receiving state. Any personal or property search of an offender residing in another state shall be conducted by an officer of the receiving state.

(e.1)  Status of seized items.--

(1)  Notwithstanding the provisions of Article XIII.1 of the act of April 9, 1929 (P.L.343, No.176), known as The Fiscal Code, to the contrary, all contraband that is seized from an offender shall be considered abandoned and unclaimed, and no property right may exist in it, except as otherwise provided in this section, if the following criteria have been met:

(i)  The parolee or probationer from whom the item was seized is no longer under the jurisdiction of the court.

(ii)  Two years have elapsed from the date the parolee or probationer was no longer under the jurisdiction of the court under subparagraph (i).

(iii)  Notice that the item will be declared abandoned was mailed to the last known address of the parolee or probationer from whom the item was seized at least 60 days prior to the date the item is to be declared abandoned.

(iv)  No other claimant of the item has notified the county adult probation and parole department of his claim or is known to the county adult probation and parole department.

(v)  The item has not been forfeited in accordance with any forfeiture statute, including, but not limited to, Chapter 68 (relating to forfeitures) and as permitted by Pennsylvania common law.

(2)  Contraband seized under this section may not be subject to replevin, but shall be deemed to be in the custody of the county adult probation and parole department. The county adult probation and parole department shall tag and secure the contraband at a place designated by it for such time as is necessary to secure its use as evidence in a violation, revocation or criminal proceeding. In no event may the county adult probation and parole department retain the property for a period of less than 180 days after the hearing conducted under paragraph (3).

(3)  (i)  No later than the time of the first-level hearing to determine whether probable cause exists to believe that a violation of probation, parole or intermediate punishment has been committed, the county adult probation and parole department shall provide notice to the offender that abandonment will be sought if the offender does not claim the seized contraband within two years after sentence completion.

(ii)  If the hearing is waived or there is a new criminal charge arising from the incident that included the seizure of the contraband, then notice under this paragraph shall be given at least five days before an abandonment hearing is held and the hearing shall be scheduled by the county adult probation and parole department within a reasonable time.

(4)  If it has been determined that property is contraband that shall be declared abandoned, the contraband shall be retained by the county adult probation and parole department until all appeal periods are exhausted to provide an opportunity for any additional parties to assert a claim of ownership or lienhold interest in the contraband. If the county adult probation and parole department receives notice of such a claim, the claimant or claimants shall be provided a hearing pursuant to paragraph (3).

(5)  (i)  Whenever contraband is declared abandoned under this subchapter, the contraband shall be transferred to the custodial care of the county adult probation and parole department. After the expiration of the necessary time period specified in this section, the county adult probation and parole department shall itemize all such abandoned contraband within its custodial care in a report to the Treasury Department.

(ii)  Within 10 business days following receipt of an itemized contraband report from a county adult probation and parole department, the Treasury Department shall provide an itemized list of all such abandoned contraband that it will not accept into its custodial care.

(iii)  All abandoned contraband not accepted by the Treasury Department pursuant to this section shall remain under the custodial control of the county adult probation and parole department. Abandoned contraband not otherwise refused by the Treasury Department shall be transferred to the custodial control of the Treasury Department as directed by the Treasury Department.

(6)  All abandoned contraband refused by the Treasury Department and remaining under the custodial control of the county adult probation and parole department shall be deemed property of the county department and title to the property shall transfer. Thereafter, the county probation and parole department shall be entitled to any or all of the following:

(i)  Retain the contraband for official use.

(ii)  Destroy the contraband.

(iii)  Donate the contraband to a nonprofit organization or governmental entity.

(iv)  Sell any contraband that is not required to be destroyed by law.

(v)  If the item is of de minimis value, as determined by the county adult probation and parole department, dispose of the item, without sale.

(7)  The county treasurer of each county shall establish and administer a community correction forfeiture fund consisting of all cash or proceeds obtained under this section. The county treasurer shall disburse money from this fund only at the discretion of the president judge of the court of common pleas, subject to paragraph (8).

(8)  Cash or proceeds generated by the sale of any abandoned contraband shall first be made available to satisfy any restitution owed by the offender to crime victims who are known at the time of the seizure by the Pennsylvania Commission on Crime and Delinquency's Office of Victim Services or by the courts of the Commonwealth where the offender was sentenced.

(9)  The county adult probation and parole department and its employees shall be immune from liability for good faith conduct under this section.

(10)  The Pennsylvania Board of Probation and Parole may enact regulations that are necessary to implement this subsection on a uniform basis throughout this Commonwealth. If regulations are promulgated, a county adult probation and parole department must comply with the regulations.

(11)  The provisions set forth in this subsection shall apply to all contraband seized after the effective date of this subsection.

(12)  Contraband seized prior to the effective date of this subsection may be disposed of in the manner set forth in paragraph (5) after notice is given to the offender from whom it was seized and any claimant known to the county adult probation and parole department. The county adult probation and parole department shall provide the notice within a reasonable time prior to holding a hearing at which abandonment shall be determined.

(13)  (i)  An appeal of an abandonment determination may be made by filing an appeal with the court of common pleas. The appeal must be received by the court of common pleas within 30 days of the mailing date of the county adult probation and parole department's order.

(ii)  When a timely appeal of an abandonment determination has been filed, the abandonment may not be deemed final for purpose of appeal to a court until the court has mailed its decision on the appeal.

(iii)  The scope of review of an appeal shall be limited to whether the decision is supported by substantial evidence, an error of law has been committed or there has been a violation of constitutional law.

(iv)  The failure of an appeal to present with accuracy, brevity, clearness and specificity whatever is essential to a ready and adequate understanding of the factual and legal points requiring consideration shall be a sufficient reason for denying the appeal.

(v)  A second or subsequent appeal and an appeal that is untimely filed under this paragraph shall not be received.

(vi)  The procedure for appeal contained in this subsection may not be construed to alter or replace any procedures provided by law for the timely filing of appeals to appellate courts.

(14)  The county adult probation and parole department shall annually post a report specifying the abandoned property or proceeds of the abandoned property obtained under this section on the county's publicly accessible Internet website and make the report available as a public document. The report shall give an accounting of all proceeds derived from the sale of abandoned property and the use made of unsold abandoned property.

(f)  When authority is effective.--The authority granted to the officers under this section shall be effective upon enactment of this section, without the necessity of any further regulation by the board.

42c9912v

(July 20, 2016, P.L.833, No.96, eff. 60 days)

 

2016 Amendment.  Act 96 added subsec. (e.1).

Cross References.  Section 9912 is referred to in section 9911 of this title.