J-S09039-23

2024 PA Super 51

COMMONWEALTH OF PENNSYLVANIA

v.

EMIRE SALEM ROSENDARY 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 207 WDA 2022

Appeal from the Judgment of Sentence Entered December 13, 2021

In the Court of Common Pleas of Erie County 

Criminal Division at No(s): CP-25-CR-0000932-2020

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

OPINION BY SULLIVAN, J.: FILED March 19, 2024

Emire Salem Rosendary (“Rosendary”) appeals from the judgment of 

sentence entered following his jury convictions for one count each of robbery, 

aggravated assault, terroristic threats, possessing an instrument of crime, and 

reckless endangerment.

1

 After careful review, we affirm.

Because of the posture of this case, we need not detail the underlying 

facts of the crime. We briefly note, on March 19, 2020, Rosendary entered 

the vehicle of his victim, lay in wait for him for nearly two hours, robbed him 

at gunpoint, and then physically assaulted him. See Trial Court Opinion, 

5/11/22, at 3-6. At the time of the March 2020 robbery, Rosendary had been 

on parole for less than six months from a prior robbery conviction. See id. at 

3. Rosendary was on electronic monitoring (“EM”) and was wearing a GPS 

____________________________________________

1 18 Pa.C.S.A. §§ 3701(a)(1), 2702(a)(1), 2706(a)(1), 907(b), and 2705.
J-S09039-23

- 2 -

ankle monitor (“GPS”) when he committed the March 2020 robbery. After his 

apprehension and prior to trial, Rosendary filed a motion to suppress. 

Following an evidentiary hearing, the suppression court denied the motion,

and made the following findings of fact:

1. [Rosendary] was on parole and under the supervision of 

Pennsylvania Board of Probation and Parole Agent Beth Ann 

Servidio [(“Agent Servidio”)] beginning in October of 2019 

and continuing through March of 2020.

2. At the time of his initial release, [Rosendary] was placed on 

a GPS . . . for 45 days as a special condition of his parole.

3. The [first GPS] was removed in mid-December 2019.

4. In . . . January of 2020, [Rosendary was] charged with new 

crimes . . . .

5. The imposition of new criminal charges while on supervision 

is a serious noncompliance with parole conditions which 

requires a serious sanction such as monitoring by [GPS].

6. [Because] of the new charges, [Rosendary] was placed on 

[GPS] for a second time[.]

7. [] Parole Agent Servidio reviewed the [GPS] Special 

Condition contract (GPS Contract) with [Rosendary], and he 

signed the [GPS] contract that same day. 

8. By signing the GPS Contract, [Rosendary] acknowledged in 

writing that he understood he was required to wear the GPS 

. . . 24 hours a day and was not permitted to remove or 

otherwise tamper with [it]. 

9. [Rosendary] was required to be in his approved residence 

from 9:00 p.m. to 5:00 a.m. daily. 

10. At the evidentiary hearing . . . [Rosendary] acknowledged 

reviewing and signing the GPS Contract.
J-S09039-23

- 3 -

11. [Rosendary] also testified at the hearing that he knew he 

would be required to wear the GPS . . . 24 hours a day.

12. As part of her duties in supervising [Rosendary] while on 

[GPS] and pursuant to department policy, Agent Servidio 

was required to review [Rosendary’s] GPS movements at 

least once a week.

13. On or about March 23, 2020, Detective Patrick Ginkel 

[(“Detective Ginkel”)] of the Erie Police Department 

contacted Agent Servidio and asked if she was supervising 

[Rosendary] and if he was on [GPS].

14. Detective Ginkel informed Agent Servidio that [Rosendary] 

was a suspect in an armed robbery.

15. Agent Servidio asked Detective Ginkel where and when the 

alleged crime had occurred.

16. Agent Servidio reviewed [Rosendary’s] GPS information for 

that date and time.

17. Agent Servidio turned over screen[]shots of [Rosendary’s]

GPS movements to Detective Ginkel.

18. Detective Ginkel did not have a warrant for [Rosendary’s]

GPS information.

Suppression Court Order, 10/1/21, at 1-3 (unnumbered) (citations to the 

record omitted).

A jury convicted Rosendary of the above-cited offenses. The trial court 

sentenced Rosendary to an aggregate term of twenty and one-half to fiftytwo years in prison. Rosendary filed a post-sentence motion, which the trial 

court denied. The instant, timely appeal followed.2

____________________________________________

2 Rosendary and the trial court complied with Pa.R.A.P. 1925.
J-S09039-23

- 4 -

Rosendary raises a single issue on appeal:

Whether the [suppression] court err[ed] in failing to suppress the 

evidence which was illegally obtained when the police utilized 

[Rosendary’s] state parole agent as a ‘22

stalking horse’ in order to circumvent the requirement of a search 

warrant?

Rosendary’s Brief at 3 (capitalization regularized).

Rosendary challenges the denial of his motion to suppress the GPS 

location data from his EM. See Rosendary’s Brief at 12-18. The issue of 

whether police are required to obtain a warrant prior to obtaining GPS location 

data from a parole agent is a matter of first impression. We begin by 

recognizing that our standard of review over the denial of a motion to 

suppress:

is limited to determining whether the findings of fact are 

supported by the record and whether the legal conclusions drawn 

from those facts are in error. In making this determination, this 

Court may only consider the evidence of the Commonwealth’s 

witnesses, and so much of the witnesses for the defendant, as 

fairly read in the context of the record as a whole, which remains 

uncontradicted. If the evidence supports the findings of the trial 

court, we are bound by such findings and may reverse only if the 

legal conclusions drawn therefrom are erroneous.

Commonwealth v. Gindraw, 297 A.3d 848, 851 (Pa. Super. 2023) (citation 

omitted, bracket removed). Further, our review is limited to the suppression 

hearing record. In re L.J., 79 A.3d 1073, 1085 (Pa. 2013). “With respect to 

a suppression court's factual findings, it is the sole province of the suppression 

court to weigh the credibility of the witnesses. Further, the suppression court 
J-S09039-23

- 5 -

judge is entitled to believe all, part or none of the evidence presented.” 

Commonwealth v. Heidelberg, 267 A.3d 492, 499 (Pa. Super. 2021) 

(citation and internal quotation marks omitted). Lastly, when a defendant 

files a suppression motion, he has “the preliminary burden of establishing 

standing and a legitimate expectation of privacy.” Commonwealth v. 

Burton, 973 A.2d 428, 435 (Pa. Super. 2009) (en banc).

Both the Fourth Amendment of the Constitution of the United States and 

Article 1, Section 8 of the Constitution of the Commonwealth of Pennsylvania 

protect citizens from unreasonable searches and seizures. The Fourth 

Amendment provides:

[t]he right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, 

shall not be violated, and no warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to 

be seized.

U.S. Const. Amend. IV.

Similarly, the Pennsylvania constitution provides:

[t]he people shall be secure in their persons, houses, papers and 

possessions from unreasonable searches and seizures, and no 

warrant to search any place or to seize any person or things shall 

issue without describing them as nearly as may be, nor without 

probable cause, supported by oath or affirmation subscribed to by 

the affiant.
J-S09039-23

- 6 -

Pa. Const. Art. I, § 8.3

With respect to the rights of parolees, this Court has explained:

[t]he aim of probation and parole is to rehabilitate and reintegrate 

a lawbreaker into society as a law-abiding citizen. The institution 

of probation and parole assumes a probationer or parolee is more 

likely than the ordinary citizen to violate the law. Consequently, 

probationers and parolees have limited Fourth Amendment 

rights because of a diminished expectation of privacy.

Commonwealth v. Parker, 152 A.3d 309, 316 (Pa. Super. 2016) (citations 

omitted, emphasis added); see also Samson v. California, 547 U.S. 843, 

852 (2006) (parolees have a “severely diminished expectation [] of privacy”). 

Moreover, law enforcement “has an ‘overwhelming interest’ in supervising 

parolees because parolees . . . are more likely to commit future criminal 

offenses.” Id. at 853 (citation omitted); see also Parker, 152 A.3d at 316. 

Nevertheless, while probationers and parolees have “a more narrowly 

protected privacy interest than that afforded a free individual . . . the 

government’s interest in enforcing the terms of parole and probation cannot 

____________________________________________

3

In the argument section of his brief, Rosendary does not set forth a separate 

analysis of whether the Pennsylvania constitution provided him with greater 

protection than the federal constitution. See Rosendary’s Brief at 12-18. To 

assert a claim that Article I § 8 provides greater protection than its federal 

counterpart, the Pennsylvania Supreme Court in Commonwealth v. 

Edmunds, 586 A.2d 887, 895 (Pa. 1991), directed a party must brief and 

analyze at least the four factors set forth in that decision. Since Rosendary

did not undertake this separate analysis in his brief, we consider his claim 

solely under the Fourth Amendment and its relevant case law.
J-S09039-23

- 7 -

entirely displace a parolee’s protected privacy rights.” Commonwealth v. 

Arter, 151 A.3d 149, 167 (Pa. 2016) (citation omitted).

The Pennsylvania Supreme Court summarized state parole agents’ 

authority and duties with respect to parolees as follows:

state parole agents’ authority and duties with respect to parolees 

are prescribed by two sections of the Prisons and Parole Code. 

Section 6152 [(repealed)4] declares agents to be peace officers 

and provides them with police power to arrest without warrant any 

parolee under supervision for violating parole conditions. See 61 

Pa.C.S.[A.] § 6152 [(repealed)]. Section 6153 [(repealed)] 

deems parole agents to be in a “supervisory relationship with their 

offenders,” aimed at assisting parolees in rehabilitation and 

reassimilation and protecting the public. Id. § 6153(a)

[(repealed)]. This section further outlines the procedures and 

requirements for agents to search the person and property of 

offenders . . . and provides that such searches must comport with 

the protections of the United States and Pennsylvania 

Constitutions. . . . . Another provision prevents the exclusion of 

evidence from parole or criminal proceedings based solely on a 

violation of the statute. 

Commonwealth v. Mathis, 173 A.3d 699, 701–02 (Pa. 2017) (footnote and 

some statutory citations omitted; footnote added).

Rosendary argues the trial court erred in denying his suppression 

motion. Specifically, he argues he “maintained a legitimate expectation of 

privacy in the record of his physical movements.” Rosendary’s Brief at 10. 

He further avers Agent Servidio became a “stalking horse” for the police by 

____________________________________________

4 61 Pa.C.S.A. §§ 6152 and 6153, in effect at the time of the March 2020 

robbery, were repealed and replaced by 61 Pa.C.S.A. §§ 6181 and 6182. The 

former and current statutes are materially identical as applied to this case.
J-S09039-23

- 8 -

acting at their behest and searching his GPS movements. See id. at 10-11. 

Rosendary concludes the police violated his rights under the United States and 

Pennsylvania Constitutions by not obtaining a search warrant. See id. at 11. 

Rosendary relies on the United States Supreme Court’s decisions in United 

States v. Jones, 565 U.S. 400 (2012) and Carpenter v. U.S., 585 U.S. 296 

(2018). See Rosendary’s Brief at 12. Rosendary claims he had a “legitimate 

expectation of privacy in the record of his physical movements.” See id. at 

13. He maintains “the tracking of an individual’s physical movements provides 

an intimate window into a person’s life revealing not only particular 

movements but through those movements, familiar, political, professional, 

religious, and sexual associations.” Id. 

The suppression court noted Rosendary agreed to GPS monitoring after 

he violated his parole by incurring new criminal charges. See Suppression 

Court Order, 10/1/21, at 2 (unnumbered); N.T., 9/30/21, at 8-9; EM – Special 

Conditions Contract, 2/5/20, at 1 (unnumbered). The court found Rosendary, 

“testified . . . under oath that he was aware that his travels outside the home 

would be monitored by parole.” Suppression Court Order, 10/1/21, at 4

(unnumbered).

5

 The suppression court thus determined Rosendary had a 

____________________________________________

5 While acknowledging parolees had a “reduced” expectation of privacy, the 

suppression court nonetheless concluded as a threshold matter that 

Rosendary had a “reasonable” expectation of privacy in his EM data and 

analyzed his Fourth Amendment claims under that standard. Suppression 

(Footnote Continued Next Page)
J-S09039-23

- 9 -

“reduced” expectation of privacy. Id. at 3 (unnumbered). It further held once 

Agent Servidio was “on notice” Rosendary was being investigated for a crime 

it was “reasonable for her to believe [Rosendary] was . . . in violation of his 

parole.” Id. at 4. The court concluded it was also “reasonable for Agent 

Servidio to provide the GPS tracking data to [Detective Ginkel].” Id.

The record supports the suppression court’s ruling. Agent Servidio 

placed Rosendary on GPS monitoring, not at the behest of the police, but as 

an alternative to incarceration favorable to Rosendary even after he was 

charged with committing new crimes, which constituted a “high-level [parole] 

violation(s)”. See N.T., 9/30/21, at 8. The record shows Rosendary signed a 

contract stating he was required to “wear the GPS Device 24 hours a day for 

the duration of GPS Monitoring.” EM ─ Special Conditions Contract, 2/5/20, 

at 1 (unnumbered).6 Further, at the suppression hearing, Rosendary agreed

____________________________________________

Court Order, 10/1/21, at 3 (unnumbered). This Court does not agree, and, 

thus, our reasoning differs from that of the trial court. However, we may 

affirm on different grounds than those enunciated by the trial court. See

Commonwealth v. Lehman, 275 A.3d 513, 520 n.5 (Pa. Super. 2022) 

(stating it is well-settled where the result is correct, we may affirm a lower 

court’s decision on any ground whether relied upon by that court); 

Commonwealth v. Elliott, 249 A.3d 1190, 1193 n. 3 (Pa. Super. 2021), (“It 

is well-settled that this Court may affirm the decision of the [trial] [c]ourt if it 

is correct on any basis”) (citations and internal quotation marks omitted).

6 We note the signed agreement provided a process by which Rosendary could 

file a written complaint if he believed the GPS monitoring was “inappropriate.” 

EM ─ Special Conditions Contract, 2/5/20, at 1 (unnumbered). There is 

nothing of record to indicate Rosendary ever did so. 
J-S09039-23

- 10 -

this was his second time on GPS monitoring, less than six months after

release. He admitted he signed the contract, and Agent Servidio explained 

everything to him. See N.T., 9/30/21, at 29. Thus, Rosendary understood 

the purpose of the GPS monitoring was to keep track of what he was doing in 

the community and to prevent him from committing further crimes. See id. 

at 9. Rosendary acknowledged he was required to wear the GPS twenty-four 

hours a day and would “get in trouble” if he removed the device. Id. at 30. 

He understood the device was “basically a tracker[.]” Id. Rosendary

consented to the tracking of his movements, did not complain the conditions 

were inappropriate, and he did not have an expectation of privacy in the 

monitoring data. As the suppression court found, regulations required Agent 

Servidio to monitor Rosendary’s whereabouts twenty-four hours a day, seven 

days a week, and review Rosendary’s GPS tracking points at a minimum of

once per week. See N.T., 9/30/21, at 6-7. Agent Servidio stated when 

Detective Ginkel informed her Rosendary was a suspect7in armed robbery, a

second and potentially serious parole violation, she questioned Detective 

Ginkel about when the robbery occurred, then went into the system and 

____________________________________________

7 While Agent Servidio did not testify as to why Rosendary was a suspect, her 

testimony makes clear Detective Ginkel was not engaged in a fishing 

expedition but was already in possession of information which pointed to 

Rosendary as the perpetrator and Detective Ginkel sought only data to 

confirm Rosendary’s presence at the scene of the robbery or exculpate 

him.
J-S09039-23

- 11 -

looked up Rosendary’s location on that day. See id. at 13. Agent Servidio 

then told Detective Ginkel “what I was seeing on the screen during that time 

frame”

8 and complied with his request for “screenshots” for that specific time 

period. Id. at 14 (emphasis added). Agent Servidio stated it was the parole 

unit’s/office’s policy “to cooperate with law enforcement agencies whenever 

trying to identify, apprehend, or detain offenders who are suspected of or 

involved in criminal activity.” Id. at 13.

Here, Agent Servidio had a legitimate reason to search Rosendary’s GPS

location data for that date and time and provide that limited information to 

police to use, confirm or rebut Rosendary’s presence at the scene of the 

robbery. Any intrusion the disclosure of Rosendary’s location at the time of 

the crime caused was narrow and focused. Further, the data had limited 

____________________________________________

8 Rosendary takes issue with Agent Servidio’s testimony that she volunteered 

the information to Detective Ginkel. See Rosendary’s Brief at 15-17. The 

record reveals although Detective Ginkel was present at the suppression 

hearing, neither party called him as a witness. See N.T., 9/30/23, at 25-26. 

In his brief, Rosendary relies on Joint Exhibit B, which consists of an extract 

of page 25 of a 126-page Erie Police Department Field Case “Supplemental 

Report.” The portion is not signed nor sworn. See Supplemental Report, 

3/26/20 at 25. Of pertinence, Detective Ginkel, who is listed as the “reporting 

officer” states “I requested Agent Servidio examine [Rosendary’s] electronic 

monitoring records . . . Agent Servidio supplied me with screen shot images 

on [sic Rosendary’s] location[.]” Id. The suppression court chose to credit 

the sworn testimony of Agent Servidio over the out-of-court unsworn extract 

of a report from Detective Ginkel. See Suppression Court Opinion, 10/1/21, 

at 5 (unnumbered). We have no basis to disturb this credibility finding. See 

Heidelberg, 267 A.3d at 499.
J-S09039-23

- 12 -

privacy implications: it simply showed Rosendary’s travels on public streets

and revealed nothing about his activities. See Trial Court Opinion, 5/11/22, 

at 3-4.

On similar facts, the Supreme Judicial Court of Massachusetts rejected 

the argument Rosendary advances concerning a parolee’s right of privacy in 

GPS data. In Commonwealth v. Johnson, 119 N.E.3d 669 (Mass. 2019),

9

Johnson violated probation and asked to be placed on an ankle monitor in lieu

of incarceration. See id. at 674-75. Following the expiration of his probation, 

the police arrested Johnson at the scene of a break-in. See id. at 675, 681. 

The police suspected Johnson had been involved in a series of break-ins while 

on probation. They contacted the probation department and asked them to 

review Johnson’s historical GPS data at the dates and times of the robberies. 

See id. Probation services later shared, without a warrant, GPS data location 

showing Johnson had been at the scene of the break-ins. See id. In 

upholding the denial of suppression, the Johnson Court held the police and 

probation services had statutory duty as a matter of Massachusetts law to 

share information, and Johnson had no reasonable expectation of privacy in 

the GPS data. See id. at 682. The Court explained, 

[t]he defendant here was of course not just on probation; 

he was on probation with the added condition of GPS monitoring 

____________________________________________

9 “This Court may cite to the decisions of other states for persuasive 

authority.” Commonwealth v. Fortune, 302 A.3d 780, 787 n. 3 (Pa. Super. 

2023) (citation omitted).
J-S09039-23

- 13 -

because he had stipulated to violating his original sentence of 

probation after he was charged with breaking and entering and 

larceny while on probation. The defendant was thus on notice that 

GPS monitoring was imposed as a result of the defendant’s 

criminal activity while on probation and the judge’s concern over 

the defendant’s demonstrated risk of recidivism. Any such 

defendant-probationer would therefore objectively understand 

that his or her person and movements were being recorded by the 

GPS device and monitored by the Commonwealth to ensure 

compliance with probationary conditions and to deter him or her 

from committing future crimes while wearing the GPS device. This 

understanding further diminished any objective expectation of 

privacy he might have had in his whereabouts, at least during the 

probationary period. 

Id. at 682 (citation omitted). 

The Court also focused on the extremely limited nature of the intrusion, 

stating:

[t]he record does not describe law enforcement engaged in 

an effort to map out and analyze all of the defendant’s movements 

over the six-month probationary period. . . . Rather, . . . the 

Commonwealth reviewed the defendant’s historical GPS location 

data to determine whether he was present at the general times 

and locations when various unsolved break-ins may have 

occurred. . . . . [T]he GPS location data actually accessed and 

reviewed by the Commonwealth was targeted to the task at hand. 

Simply comparing subsets of the defendant’s GPS location 

data recorded while he was on probation to the general 

times and places of suspected criminal activity during the 

probationary period is not a search in the constitutional 

sense. 

* * * * *

We also understand that even a targeted review of GPS data 

directed at times and locations of suspected criminal activity 

during a probationary period will likely expose the police to some 

other information concerning the defendant’s whereabouts during 

the relevant time periods. This is, however, quite different from 

either mapping out and reviewing all of the defendant’s 
J-S09039-23

- 14 -

movements while on probation or rummaging through the 

defendant’s historical GPS location data indiscriminately. So long 

as the review is targeted at identifying the defendant’s 

presence at the time and location of particular criminal 

activity during the probationary period, it is not a search, 

as such review is consistent with a probationer’s limited 

expectations of privacy. Police action necessary to deter and 

detect criminal activity during the probationary period is 

reasonably expected. 

Id. at 684-85 (citations and footnote omitted; emphases added).10 

Here, as in Johnson, Rosendary chose to be placed on EM as an 

alternative to incarceration after he committed serious parole violations. 

____________________________________________

10 As noted above, this is a matter of first impression. We have uncovered 

few cases, either published or unpublished in either federal court or in our 

sister states, addressing this issue. However, in unpublished decisions, 

federal courts have agreed with our conclusion that a parolee has a severely 

diminished expectation of privacy in GPS location data. See United States 

v. Lenhart, 2023 WL 5524851, at *2 (6th Cir., 8/23/23) (affirming district 

court’s denial of appellant’s motion to suppress real-time location data 

regarding the location of a car being used by a fugitive parolee subject to 

electronic monitoring and holding “a parolee who was subject to electronic 

monitoring as a condition of his parole[] had no reasonable or legitimate 

expectation of privacy in his location”); United States v. Gaines, 2021 WL 

4263375, at **7-8 (D. Conn., 9/20/21) (denying defendant’s motion to 

suppress GPS location data gathered by parole agent and shared, without a 

warrant, with police as part of an investigation into defendant’s participation 

in a conspiracy to commit murder because as a parolee, defendant had “a 

substantially diminished expectation of privacy in his location at any given 

time”); Mackey v. Hanson, 2019 WL 5894306, at **4-6 (D. Colo., 11/12/19) 

(denying habeas corpus relief and rejecting defendant’s Fourth Amendment 

challenge to suppress GPS location data turned over from pre-trial monitoring 

services to the police where the Colorado Court of Appeals made a “colorable 

application of the correct Fourth Amendment standard” in holding the 

defendant “did not have a legitimate expectation of privacy in the GPS data 

collected by the ankle monitor he agreed to wear as a condition of his pretrial 

release in another case.”). 
J-S09039-23

- 15 -

Rosendary was thus on notice that the parole system received information 

about his locations twenty-four hours a day to ensure he did not engage in 

further prohibited activity. Agent Servidio had a legitimate reason to search 

Rosendary’s GPS location data for the date and time of the robbery and 

provide that limited information to police. It was reasonable for the police to 

receive Rosendary’s GPS location data to confirm or rebut his presence at the 

scene of the robbery. Further, any intrusion in the disclosure of Rosendary’s 

location at the time of the crime was brief and targeted. The data simply 

showed Rosendary’s travels on public streets and showed nothing about his 

activities at these locations. See Trial Court Opinion, 5/11/22, at 3-4.

We take instruction from this Court’s decision in Commonwealth v. 

Dunkins, 229 A.3d 622 (Pa. Super. 2020), affirmed, 263 A.3d 247 (Pa. 

2021), cert. denied, --- U.S. ---, 142 S.Ct. 1679 (2022). In Dunkins, 

campus police at Moravian College (“college”) who were investigating an oncampus robbery by two men, requested that the Director of Systems 

Engineering access the college’s Wi-Fi network to compile a list of students 

logged into the nearest Wi-Fi access point to the robbery. See Dunkins, 263 

A.3d at 625. They discovered, at the time of the robbery, Dunkins was the 

only male non-resident of the dorm logged into the network at that location. 

See id. The campus police provided this information to the local police 

department. See id. at 625-26. In affirming the trial court’s denial of 

suppression, this Court highlighted that Dunkins consented to the college’s 
J-S09039-23

- 16 -

collection and dissemination of cell site location information (“CSLI”) by

signing and accepting the college’s internet policy, which allowed it to collect 

internet data. See id. at 629-30. 

Rosendary knowingly and voluntarily consented to have his movements 

monitored by a third party in exchange for the benefit of avoiding

incarceration. The GPS data at issue here and CSLI data at issue in Dunkins

are similar. Rosendary was on parole, consented to have his movements 

monitored, and he lost any expectation of privacy in those movements when 

he knowingly and voluntarily signed the GPS contract. See id.

Moreover, we find Rosendary’s reliance on Jones, supra and 

Carpenter, supra misplaced.11 Neither Jones nor Carpenter involved an 

individual on parole who consented to share his location data with the 

government as an alternative to incarceration after he violated parole. 

____________________________________________

11 In Jones, the police, acting without a warrant, installed a GPS tracker on a 

suspect’s car. See Jones, 565 U.S. at 402-03. The United States Supreme 

Court held this constituted a search within the meaning of the Fourth 

Amendment. See id. at 404. The Court summarized what took place as 

“[t]he Government physically occupy[ing] private property for the purpose of 

obtaining information.” Id. In Carpenter, the government obtained, without 

a warrant, CSLI from several wireless carriers to track the long-term 

movements of a suspect in multiple robberies. Carpenter, 585 U.S. at 301-

03. The Supreme Court held that, because of the “the unique nature of cell 

phone location records,” an individual “maintains a legitimate expectation of 

privacy in the record of his physical movements as captured through [CSLI],” 

and, accordingly, CSLI obtained from Carpenter’s wireless carriers was the 

product of a search. Id. at 2217 (footnote omitted). 
J-S09039-23

- 17 -

Moreover, Detective Ginkel did not request Agent Servidio turn over the 

volumes of data collected in both Jones and Carpenter but rather asked for 

screenshots following her independent decision to review Rosendary’s GPS 

data; and this request was limited to a particular time on a single date while 

Rosendary, whom he already suspected of involvement with the 

robbery, was traveling on public streets. See Jones, 565 U.S. at 403; 

Carpenter, 585 U.S. at 301-02. Furthermore, it is well settled law that a 

person has no legitimate expectation of privacy in their movements on public 

streets. See U.S. v. Knotts, 460 U.S. 276, 281 (1983).

Thus, for the reasons discussed above, the findings of fact are supported 

by the record, and the suppression court did not err in denying Rosendary’s 

motion to suppress. See id. at 281; Dunkins, 263 A.3d at 255-56; Johnson, 

119 N..E.3d at 682-85.

Moreover, even if Rosendary had a legitimate expectation of privacy in 

his GPS data, and Agent Servidio’s action in turning the information over to 

the police constituted a warrantless search, Rosendary would nevertheless be 

due no relief because the record clearly demonstrates the search was 

reasonable. The statute in place at the time of the March 2020 robbery 

allowing a search by a parole officer provides, in relevant part:

(b) Searches and seizures authorized.—

(1) Agents may search the person and property of offenders in 

accordance with the provisions of this section.
J-S09039-23

- 18 -

(2) 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.

* * * * *

(d) Grounds for personal search of offender.—

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

agent:

(i) if there is a reasonable suspicion to believe that the 

offender possesses contraband or other evidence of 

violations of the conditions of supervision[.]

* * * * *

(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 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.

61 Pa.C.S.A. § 6153(b), (d) (repealed).
J-S09039-23

- 19 -

We have stated, “parolees agree to ‘endure warrantless searches’ based 

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

Commonwealth v. Curry, 900 A.2d 390, 394 (Pa. Super. 2006) (citation 

omitted). Thus, “agents need not have probable cause to search a parolee or 

his property; instead, reasonable suspicion is sufficient to authorize a search.” 

Id. A search will be deemed reasonable “if the totality of the evidence 

demonstrates: (1) that the parole officer had a reasonable suspicion that the 

parolee had committed a parole violation, and (2) that the search was 

reasonably related to the parole officer’s duty.” Commonwealth v. Gould, 

187 A.3d 927, 935 (Pa. Super. 2018) (citation omitted). Parole officers may 

form reasonable suspicion based on personal observations, their history with 

the parolee, the parolee’s behavior while on parole, and third-party 

information. See Commonwealth v. Colon, 31 A.3d 309, 314–16 (Pa. 

Super. 2011).

Here, as noted above, Rosendary was on parole for armed robbery. 

Rosendary was placed on GPS monitoring because he violated his parole by 

allegedly committing additional crimes while on parole and he consented to 

GPS monitoring. Detective Ginkel, a reliable third party, informed Agent 

Servidio that Rosendary was a suspect in an armed robbery, the very same

crime that led to Rosendary’s placement on parole. Looking at the totality of 

the evidence, this was sufficient to allow Agent Servidio to search Rosendary’s

GPS location information for the day and time of the robbery and disseminate 
J-S09039-23

- 20 -

the information to Detective Ginkel. See Commonwealth v. Smith, 302 

A.3d 123, 127 (Pa. Super. 2023) (holding parole officer had reasonable 

suspicion for a warrantless search of parolee’s residence where parolee had 

failed a drug test, his GPS showed visits to known drug spots, and parole 

agent received tips regarding parolee’s drug activities); Commonwealth v. 

Kuhlman, 300 A.3d 460, 462, 468 (Pa. Super. 2023) (holding a probation 

officer had reasonable suspicion to search Kuhlman’s computer where 

Kuhlman was on probation for computer-related crimes, the probation officer 

was aware Kuhlman had unmonitored internet access, Kuhlman’s therapist 

expressed concerns about his lack of remorse, and Kuhlman had consented to 

warrantless searches of his person and home); Gould, 187 A.3d at 936-37 

(holding parole agent had reasonable suspicion to detain defendant and search 

his person and vehicle, where police informed parole agent defendant was not 

residing at his designated residence, was seen in known drug spots, and parole 

agent had previously put defendant on notice for parole violations); 61 

Pa.C.S.A. § 6153(b), (d) (repealed).

Lastly, Rosendary argues even if Agent Servidio had reasonable 

suspicion, she was acting as a “stalking horse” for the police. Rosendary’s 

Brief at 13-18. “[P]ennsylvania courts historically invalidated probation 

officers’ searches and subsequent seizures of evidence where the probation 

officers essentially ‘switched hats,’ and, in all relevant respects, became police 

officers.” Parker, 152 A.3d at 320. This is referred to as the “stalking horse” 
J-S09039-23

- 21 -

doctrine. See id. The rationale behind the rule is to prevent a parole officer 

from aiding the police “by statutorily circumventing the warrant requirement, 

based on reasonable suspicion, instead of the heightened standard of probable 

cause.” Id. In determining which “hat” the parole agent is wearing, the 

determinative element is the purpose of the search. See Commonwealth v. 

Brown, 361 A.2d 846, 850 (Pa. Super. 1976).

We find United States v. Lambus, 897 F.3d 368 (2d Cir. 2018)

elucidating.12 There, the United States Court of Appeals for the Second Circuit

held that a state parole agent who passed GPS monitoring data to police for 

several years as part of on-going state and federal investigations into 

Lambus’s drug dealing did not violate the “stalking horse” doctrine. See id. 

at 402-12. The Second Circuit stated state parole officials had not become 

“mere conduits for federal law enforcement or that GPS monitoring . . . was 

continued at the behest of the federal agents.” Id. at 406. The Court 

particularly noted it was the parole agent’s decision, not that of federal 

authorities, to place and continue Lambus on GPS monitoring. See id. 

Ultimately, the Second Circuit concluded a parolee had a diminished 

expectation of privacy in his movements; GPS monitoring of the parolee was 

____________________________________________

12 “We recognize [federal court] decisions are not binding precedent on this 

Court. Nevertheless, we may consider federal court decisions, and opinions 

of other states, as persuasive authority.” Commonwealth v. Lang, 275 A.3d 

1072, 1083 (Pa. Super. 2022) (citations omitted).
J-S09039-23

- 22 -

reasonable, as was the turning over of the GPS monitoring location data to 

federal authorities. Lambus, 897 F.3d at 412.

Here, there is nothing in the record which supports Rosendary’s claim 

that Agent Servidio was acting as a “stalking horse.” Rosendary was not 

placed on GPS at Ginkel’s (police) request. Rather, he was placed on GPS a 

second time for incurring new criminal charges, which is a parole violation.

Nothing in the record indicated Agent Servidio regularly shared information 

with or contacted police. When contacted by the police and informed by them 

of her parolee’s status as a suspect in yet another crime, Agent Servidio

checked the GPS location data for a single date and time and shared that 

limited and relevant information with police. Moreover, Rosendary did not 

provide contradictory evidence of either an explicit or tacit agreement between 

Detective Ginkel and Agent Servidio for Agent Servidio to monitor Rosendary 

for the purpose of aiding a police investigation. See supra note 6. Thus, 

Rosendary has not demonstrated that Agent Servidio was acting as a “stalking 

horse.” See Lambus, 897 F.3d at 412; see also Gould, 187 A.3d at 938-39 

(rejecting “stalking horse” doctrine where, after being informed by police of 

defendant’s suspected drug activities parole agent, with police as backup, 

detained and searched defendant for suspected parole violations); Parker, 

152 A.3d at 323 (rejecting “stalking horse” doctrine where there was no 
J-S09039-23

- 23 -

evidence of any express or tacit agreement between probation officers and 

police).13

As none of Rosendary’s arguments merit relief, we affirm his judgment 

of sentence.

Judgment of sentence affirmed.

DATE: 03/19/2024

____________________________________________

13 Even if the trial court erred in denying Rosendary’s suppression motion, he 

would be due no relief because the error is harmless. Once a reviewing court 

has decided admitted evidence should have been suppressed, it must 

determine beyond a reasonable doubt whether the error was harmless. Where 

the error is harmless, a new trial is not warranted. Our Supreme Court has 

explained that “[h]armless error exists if the reviewing court is convinced from 

the record that[, inter alia,] the erroneously admitted evidence was merely 

cumulative of other untainted evidence . . . .” Commonwealth v. Petroll, 

738 A.2d 993, 1005 (Pa. 1999). Here, the GPS location monitoring data was 

merely confirmatory, and, thus, cumulative. A private security camera at the 

location of the robbery showed Rosendary entering the victim’s car and lying 

in wait for the victim for over two hours. See Trial Court Opinion, 5/11/22, 

at 3. Moreover, two Erie Police Department officers observed Rosendary in 

the vicinity immediately prior to the robbery and provided a detailed 

description of him; their description matched that of the individual seen on 

the security camera. See id. at 5-6. Accordingly, if the trial court’s ruling 

were erroneous, it would be harmless.