Probation Conditions • Right Against Self-Incrimination

Commonwealth v. Green, PICS Case No. 14-0381 (Pa. Super. March 5, 2014) Platt, J. (8 pages).

Where a parolee had reasonable cause to believe that the provision of information as a condition of parole could lead to prosecution in a subsequent criminal proceeding, the state could not compel the parolee to provide such information as a condition of parole unless he is guaranteed that such information will not be used to prosecute him for other crimes. Sentence vacated.

Appellant Len Allen Green appealed from his sentence following conviction for theft. Pursuant to a negotiated guilty plea, in addition to confinement, probation, and restitution, appellant was sentenced, at the commonwealth’s request and over appellant’s objection, to disclose the location(s) of where he disposed of the stolen items as a condition of probation. Appellant argued that requiring him to disclose where he deposited stolen goods as a condition of his probation would, without appropriate safeguards, violate his Fifth Amendment right against self-incrimination, as such information could lead to criminal investigation relating to other stolen items and further criminal prosecution.

Noting that the Pennsylvania Constitution provides no greater protection against self-incrimination than the Fifth Amendment to the U.S. Constitution, the court concurred with appellant’s argument. The court noted prior case law in Minnesota v. Murphy and Commonwealth v. Fink, which held that requiring disclosure of information of past criminal activity as a condition of parole or probation violated the right against self-incrimination, except, as the Murphy court noted, where the state provides proper guarantees and protection against said information being used in a criminal proceeding. The Fink court also clarified that the privilege extended not only to information that would in itself establish guilty, but also any information that may constitute an essential link in a chain of evidence that could establish guilty.

The court disagreed with the trial court’s analysis that the required information did not violate appellant’s right against self-incrimination, as appellant had already pled guilty and disclosure of the location(s) of the stolen items in the case would not further incriminate appellant. However, the court found that requiring appellant to disclose the location(s) of the victim’s stolen property could lead to incriminating evidence that, while not itself establishing guilt, might be used as a link in a chain of evidence to establish guilt in further criminal prosecutions.