Com. v. Maguire, J. ( 2017 )

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2017 Pa. Super. 351
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
JEFFERY CHARLES MAGUIRE
Appellee No. 654 MDA 2016
Appeal from the Order Entered March 22, 2016
In the Court of Common Pleas of Clinton County
Criminal Division at No(s): CP-18-CR-0000396-2015
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
DISSENTING OPINION BY LAZARUS, J.: FILED NOVEMBER 08, 2017
I respectfully dissent. I find that the commercial vehicle inspection stop
at issue was subject to the Tarbert/Blouse1 guidelines, albeit on different
grounds than the suppression court, and the inspection program here was not
in substantial compliance with those guidelines. Therefore, the stop of
Maguire’s vehicle was unlawful, and I would affirm the suppression court’s
order.2
As the majority properly notes, the only evidence the Commonwealth
presented at the suppression hearing was Trooper Beaver’s uncontradicted
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1 Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987) (plurality);
Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992).
2 See Commonwealth v. Williams, 35 A.3d 44, 47 (Pa. Super. 2011) (this
Court can affirm lower court’s decision if there is any basis to support it, even
if we rely on different grounds).
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testimony. Thus, since no facts are in dispute, the question presented is
purely one of law and our standard of review is de novo. Commonwealth v.
Beaman, 880 A.2d 578, 581 (Pa. 2005); see also Commonwealth v.
Guzman, 44 A.3d 688, 691–92 (Pa. Super. 2012).
In his motion to suppress, Maguire claimed the systematic checkpoint
did not comply with the guidelines set forth in Commonwealth v. Tarbert,
535 A.2d 1035 (Pa. 1987) (plurality), and adopted by a majority of the
Supreme Court in Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992).
[T]o be constitutionally acceptable, a checkpoint must meet the
following five criteria: (1) vehicle stops must be brief and must
not entail a physical search; (2) there must be sufficient warning
of the existence of the checkpoint; (3) the decision to conduct a
checkpoint, as well as the decisions as to time and place for the
checkpoint, must be subject to prior administrative approval; (4)
the choice of time and place for the checkpoint must be based on
local experience as to where and when intoxicated drivers are
likely to be traveling; and (5) the decision as to which vehicles to
stop at the checkpoint must be established by administratively
pre-fixed, objective standards, and must not be left to the
unfettered discretion of the officers at the scene.
Commonwealth v. Worthy, 957 A.2d 720, 725 (Pa. 2008), citing Blouse,
supra, and Tarbert, supra. “Substantial compliance with the
Tarbert/Blouse guidelines is all that is necessary to minimize the
intrusiveness of a roadblock seizure to a constitutionally acceptable level.”
Commonwealth v. Yastrop, 768 A.2d 318, 323 (Pa. 2001). However,
where police do not comply with the guidelines in establishing a checkpoint,
the trial court should suppress evidence derived from the stop, including the
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results of field sobriety and blood alcohol testing. See Commonwealth v.
Blee, 695 A.2d 802, 806 (Pa. Super. 1997).
The suppression court, relying on this Court’s en banc decision in
Commonwealth v. Garibay, 106 A.3d 136 (Pa. Super. 2014), concluded that
the Tarbert/Blouse guidelines applied to commercial vehicles when setting
up DUI and non-DUI checkpoints. In Garibay, the City of Pittsburgh set up a
checkpoint as part of the Pennsylvania Department of Transportation’s “Click
It or Ticket” program, which was designed to ensure compliance with seatbelt
requirements. When Garibay’s vehicle was stopped at the checkpoint, police
suspected he was under the influence of marijuana due to his failure to
respond, his trance-like state, and “a particularly pungent odor of marijuana
emanating from his person and his vehicle.” Id. at 137. Garibay was arrested
for DUI; a search incident to the arrest yielded a white porcelain pipe in
Garibay’s front jacket pocket.
Garibay was charged with DUI, possession of drug paraphernalia and
two vehicle–related summary offenses. He filed a motion to suppress, alleging
police did not comply with the Tarbert/Blouse guidelines for checkpoint
stops. Following a hearing, the court denied the motion to suppress. On
appeal, this Court vacated the judgment of sentence, holding that the existing
Tarbert/Blouse standards applied to non-DUI checkpoints, and that the
Commonwealth failed to present evidence that the checkpoint complied with
those standards. Id. at 143.
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Here, the suppression court found that the inspection checkpoint at
issue did not comply with those standards, in particular the fifth criterion that
checkpoint stops must be established by administratively pre-fixed, objective
standards, and must not be left to the unfettered discretion of the officers at
the scene. The suppression court relied on this Court’s decision in Garibay,
stating: “In Garibay, the Superior Court made no distinction or exceptions
for commercial vehicles.” Suppression Court Opinion, 5/12/16, at 2.
However, contrary to the suppression court’s interpretation, and Maguire’s
argument, that issue was not presented in Garibay.
Garibay involved a Dodge Caravan and a non-DUI/seatbelt safety
checkpoint, and we held that the Tarbert/Blouse standards applied to non-
DUI checkpoints as well as DUI checkpoints. There was no mention of the
application of the Tarbert/Blouse standards to commercial vehicles.
Garibay, supra; see also In re: J.A.K., 908 A.2d 322 (Pa. Super. 2006)
(non-DUI vehicle checkpoint for seat belt and child seat violations complied
with procedural requirements and was not controlled by arbitrary discretion of
police officers).
The question, then, is whether there is any reason to find that the
Tarbert/Blouse guidelines would not apply to a commercial vehicle non-DUI
checkpoint. The Commonwealth argues, and the majority finds, that the
standards do not apply because commercial vehicle inspections fall within the
highly regulated industry exception to the warrant requirement, and, thus,
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commercial vehicle inspections made pursuant to section 4704 are not
governed, or contemplated by, the Tarbert/Blouse guidelines.
The United States Supreme Court has recognized an exception to the
warrant requirement for administrative inspections in “closely regulated”
businesses. New York v. Burger, 482 U.S. 691, 693 (1987). There, the
Court defined the characteristics of an administrative search that validly
circumvents the warrant requirement. The Commonwealth correctly asserts,
and the majority correctly finds, that trucking is a closely regulated industry.
See Commonwealth v. Petroll, 738 A.2d 993 (Pa. 1999).3 Administrative
checkpoint inspections, therefore, are not subject to the warrant
requirement.4
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3 As our Supreme Court noted in Petroll, state and federal regulations require
drivers of commercial vehicles to maintain and possess a logbook; the logbook
details various information, including the driver’s daily time and mileage of
travel for one week. See 67 Pa. Code § 229.343; 49 C.F.R. § 395.8. See
also 75 Pa.C.S.A. § 6103(c) (authorizing PennDOT to adopt federal statutes
or regulations relating to vehicles or drivers). The Commonwealth has adopted
the federal rule setting a maximum time allowable for commercial driving.
See 67 Pa. Code § 229.341; see also 49 C.F.R. § 395.3 (establishing driving
time limits). Petroll, 738 A.2d at 1002. See also Commonwealth v.
Pollock, 606 A.2d 500, 506 (Pa. Super. 1992); Commonwealth v. Berry,
451 A.2d 4, 6–7 (Pa. Super. 1982); 75 Pa.C.S.A. § 4701 et seq.
4 Non-commercial vehicles, like commercial vehicles, are also heavily
regulated. “Automobiles, unlike homes, are subject to pervasive and
continuing governmental regulation and controls, including periodic inspection
and licensing requirements.” Tarbert, 535 A.2d at 1038, quoting South
Dakota v. Opperman, 428 U.S. 364, 368 (1976).
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In the context of a pervasively regulated business, a warrantless
inspection is reasonable if three criteria are met:
First, there must be a substantial government interest that
informs the regulatory scheme pursuant to which the inspection
is made[.] Second, the warrantless inspection must be necessary
to further [the] regulatory scheme[.] Finally, the statute’s
inspection program, in terms of the certainty and regularity of its
application, [must] provid[e] a constitutionally adequate
substitute for a warrant. In other words, the regulatory statute
must perform the two basic functions of a warrant: it must advise
the owner of the commercial premises that the search is being
made pursuant to the law and has a properly defined scope, and
it must limit the discretion of the inspecting officers.
Petroll, 738 A.2d at 578-79, quoting Burger, 482 U.S. at 702–703 (citations
and quotations omitted) (emphasis added). See Commonwealth v.
Hudak, 710 A.2d 1213 (Pa. Super. 1998) (discovery of evidence of crimes in
course of enforcing otherwise proper administrative inspection does not
render search illegal or administrative scheme suspect), citing Petroll, supra,
and Burger, supra.
The Commonwealth argues:
Trooper Beaver was within his duties and requirements as a
certified commercial motor vehicle inspector to stop Maguire’s
commercial vehicle for a safety inspection at the Clinton County
Landfill on May 20, 2015. Because the initial stop of Maguire’s
commercial vehicle was a lawful administrative
search/commercial vehicle inspection not designed to investigate
criminal activity, the closely regulated industry exception to the
warrant requirement allowed Trooper Beaver to detain Maguire
and collect evidence related to a suspected DUI after he had
probable cause to believe Maguire was operating his vehicle under
the influence of alcohol. In other words, Trooper Beaver did not
stop Maguire’s commercial vehicle to investigate whether Maguire
had been drinking and driving, but once he detected alcohol on
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Maguire’s breath, the closely regulated industry exception allowed
him to detain Maguire and search and seize relevant evidence.
Commonwealth’s Brief, at 22-23 (emphasis added).
This argument misses the mark; the Commonwealth’s focus on the
purpose of the stop is beside the point. During a systematic vehicle
inspection, an officer may detain a driver suspected of DUI and search and
seize relevant evidence. That presumes, however, that the administrative
stop was lawful. Here, the Commonwealth makes that assumption when in
fact the question of whether the administrative stop was “lawful” is the precise
issue before this Court.
A commercial vehicle safety inspection must comply with section 4704
of the Vehicle Code, which provides the authority for a warrantless inspection.
Section 4704 states:
(a) Authority to inspect.--
***
(2) Systematic vehicle inspection programs.-- Any
Pennsylvania State Police officer or qualified Commonwealth
employee engaged in a systematic vehicle inspection
program may inspect any vehicle, driver, documents,
equipment and load to determine whether they meet
standards established in department regulations.
75 Pa.C.S.A. § 4704(a)(2) (emphasis added). Pursuant to section 4704(a)(2),
state officials may execute a systematic vehicle inspection program in order
to “remove unsafe vehicles from the roadways before an accident occurs.”
Petroll, 738 A.2d at 1003. This is the same rationale behind section 6308(b)
of the Vehicle Code, which provides for systematic inspection of non-
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commercial vehicles. See Blouse, supra (compelling interest of state in
protecting its citizens from harm of unsafe vehicles occupying roadways
outweighs privacy interest of individual).
In Petroll, supra, the Supreme Court concluded that section 4704 must
be read in the context of the rest of the Chapter 47 provisions relating to
inspection of vehicles and that it authorizes inspections to discover ongoing
violations in order to prevent future harm. The Court specifically noted that
the provision does not grant police unlimited discretion to search a driver or
vehicle for evidence of a crime. Subsection 4704(a)(2) authorizes police and
officials “engaged in a systematic inspection program” to inspect vehicles,
drivers, documents, equipment, and load to ascertain compliance with the
Pennsylvania Department of Transportation regulations. 75 Pa.C.S.A. §
4704(a)(2). The same rationale applies to section 6308(b) of the Vehicle
Code, as amended, 75 Pa.C.S.A. § 6308(b).
Notably, in 1985, while the Tarbert case was pending in this Court, the
legislature amended the statutes pertaining to both non-commercial and
commercial vehicles.5 See 75 Pa.C.S.A. § 6308(b) (as amended 1985, June
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5 This Court’s decision in Commonwealth v. Tarbert, 502 A.2d 221 (Pa.
Super. 1985), was filed on December 6, 1985. We held, on independent state
constitutional grounds, that, absent probable cause or a reasonable suspicion
that a crime has been or is being committed, stopping all vehicles travelling
on a public highway, pursuant to a police roadblock, violated an individual’s
right to be free from unreasonable search and seizure. Tarbert, 502 A.2d at
224-25. In the 1985 amendments to the Vehicle Code, the General Assembly
added subsection (a)(2), explicitly authorizing a “police officer . . . engaged in
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19, P.L. 26, No. 20, § 10, effective in 60 days) (authorizing “systematic vehicle
inspection programs,” and giving authority to police officers who are “engaged
in a systematic program of checking vehicles or drivers to stop a vehicle . . .
for the purpose of checking the vehicle’s registration . . . or [a] driver’s license
. . .” without the requirement of articulable and reasonable grounds to suspect
a violation of the Code); see also 75 Pa.C.S.A. 4704(a)(2) (as amended 1985,
June 19, P.L. 49, No. 20, § 5, effective in 60 days) (authorizing police and
officials “engaged in a systematic inspection program” to inspect vehicles,
drivers, documents, equipment, and load to ascertain compliance with
Pennsylvania Department of Transportation regulations). These statutory
amendments provided the authority for warrantless systematic inspections or
checkpoints, of both commercial and non-commercial vehicles, and our
Supreme Court’s subsequent 1987 decision in Tarbert, and its 1992 decision
in Blouse, set forth guidelines to assure that the inspection programs provide
a constitutionally adequate substitute for a warrant. See Burger, supra.
In my opinion, the statutory language, the interests promoted, and the
evils to be addressed by section 4704(2) and section 6308(a)(2) are identical.
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a systematic program of checking vehicles or drivers” to stop a vehicle upon
request or signal to “secure such other information as the officer may
reasonably believe to be necessary to enforce the provisions” of the Motor
Vehicle Code. See 1985, June 19, P.L. 49, No. 20, § 5, effective 60 days.
Prior to 1985, the Vehicle Code did not specifically authorize such systematic
roadblocks. The Supreme Court’s decision in Tarbert, affirming this Court,
acknowledged that the roadblock in effect pre-1985 was not statutorily
authorized, and thus the roadblock stop as to defendant Tarbert was unlawful.
“The illegality arose because the exercise of the police power therein exceeded
the statutory parameters then in force.” Tarbert, 535 A.2d at 1045.
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Both commercial and non-commercial vehicles are heavily regulated, and thus
both fall within an exception to the warrant requirement. I would find, then,
that the Commonwealth’s argument is unpersuasive; the fact that commercial
vehicles fall within the heavily regulated industry exception to the warrant
requirement does not necessarily preclude a finding that the Tarbert/Blouse
guidelines apply, and I see no reason to exempt systematic commercial
vehicle inspections from those standards. Administrative searches without a
warrant are permitted when there is substantial government interest, the
search is necessary to further the regulatory scheme, and the inspection
program provides a constitutionally adequate substitute for a warrant.
Tarbert, supra; Blouse, supra. It is significant to note that the underlying
principles of the Tarbert/Blouse guidelines, and the Burger requirements
for administrative warrantless searches in a closely regulated industry, are
compatible; most critically, both mandate limits on the discretion of inspecting
officers, the key factor missing here.
In my view, the Tarbert/Blouse guidelines provide a practical
framework for ensuring that the inspection program provides a constitutionally
adequate substitute for a warrant. And, as our Supreme Court has stated in
Tarbert and in Blouse, “[s]ubstantial compliance with the guidelines is all
that is required to reduce the intrusiveness of the search to a constitutionally
acceptable level.” Tarbert, 535 A.2d at 1043; Blouse, 611 A.2d at 1180.
See also Commonwealth v. Worthy, 957 A.2d 720 (Pa. 2008);
Commonwealth v. Yastrop, 768 A.2d 318 (Pa. 2001); Garibay, supra.
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I also find unconvincing the Commonwealth’s argument that because
the Tarbert/Blouse guidelines preclude a physical search of the vehicle or its
occupants and reference intoxicated drivers that they, therefore, do not apply
to commercial vehicle inspections. The guidelines are easily adapted to non-
DUI checkpoints, as illustrated in Garibay, and to commercial vehicles, as
here. The critical concern is that the inspection be systematic, non-arbitrary,
and not left to the discretion of the inspecting officers. As our Supreme Court
stated in Tarbert, “[s]ubstantial compliance with the guidelines is all that is
required to reduce the intrusiveness of the search to a constitutionally
acceptable level.” Tarbert, 535 A.2d at 1043.
For these reasons, I would find the Tarbert/Blouse standards
applicable to systematic inspections for commercial vehicles. Here, the
systematic vehicle inspection program was required to comply with the
provisions of the Vehicle Code, which authorized the inspection for compliance
with its mandates. A lawful administrative search, conducted in accordance
with section 4704 and the Tarbert/Blouse guidelines, would not offend
Article I, Section 8 of the Pennsylvania Constitution, and the fruits of the
search would be admissible.
I would also find that the record supports the suppression court’s finding
that the inspection program did not comply with Tarbert/Blouse. Here, the
court examined each of the Tarbert/Blouse factors, and it made specific
findings that the Commonwealth offered no evidence or testimony with
respect to three of the five standards. In particular, the court found the
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Commonwealth did not establish sufficient warning of the existence of the
checkpoint. Additionally, the choice of time and place for the checkpoint must
be based on local experience as to the particular reason for the checkpoint.
See Worthy, supra. Finally, and of particular concern, Trooper Beaver’s
testimony as to how officers determined which vehicles to stop at the
checkpoint did not support a finding that the procedure followed objective
standards. Instead, the procedure he described allowed for officer discretion.
The procedure permitted each of the officers to perform inspections and, when
available, the officer could inspect the next truck that entered the landfill. In
other words, if all of the officers on the team were occupied with inspections,
one truck, or many, could enter the landfill without inspection. Absent an
objective standard by which the officers stopped the trucks, stops could
feasibly be left to an officer’s “unfettered discretion.” Worthy, 957 A.2d at
725 (discussing Tarbert, supra, and Blouse, supra). I find this is a clear
violation of the Tarbert/Blouse requirements.
In conclusion, I would find the Tarbert/Blouse standards apply to
commercial vehicle checkpoints, and the record supports the suppression
court’s finding that the inspection here was not in substantial compliance with
those standards. Guzman, supra. Thus, the stop of Maguire’s vehicle was
unlawful. I would affirm the suppression court’s order.
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