Com. v. Thompson, M.

J-A24006-22
2023 PA Super 16COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL THOMPSON :
:
Appellant : No. 2632 EDA 2021
Appeal from the Judgment of Sentence Entered December 13, 2021
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002233-2020
BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.
OPINION BY BENDER, P.J.E.: FILED FEBRUARY 7, 2023
Appellant, Michael Thompson, appeals from the judgment of sentence
of 66 to 132 months’ incarceration1 entered following his stipulated non-jury
trial conviction of one count of person not to possess a firearm. His appellate
issues both relate to the trial court’s denial of his motion to suppress a firearm,
which was recovered during an inventory search prior to towing Appellant’s
vehicle. Appellant argues that our Supreme Court’s decision in
Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020) (holding that Article
I, Section 8 does not recognize the full federal “automobile exception” to the
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1 Appellant was initially sentenced on October 29, 2021, to 81 to 162 months
of incarceration. Appellant filed a post-sentence motion for relief on
November 5, 2021, and on December 13, 2021, the court entered an order
amending the sentence to 66 to 132 months of incarceration. While the trial
court entered an order on December 14, 2021, granting Appellant’s post-
sentence motion and vacating judgment of sentence, this Court has amended
the docket to reflect the resentencing date.
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warrant requirement), eliminated the inventory search exception. We
disagree and affirm the judgment of sentence.
On July 1, 2020, police and medical personnel were dispatched to an
Aamco station at approximately 1:30 p.m., due to an unconscious person in
a vehicle. N.T. Suppression, 6/22/21, at 9. When Officer Joseph Vavaracalli
of the Marple Township Police Department arrived, EMT personnel were
speaking to Appellant, whose vehicle was blocking two or three other cars.
Id. at 15. Officer Vavaracalli spoke to Appellant, who appeared lethargic,
stumbled as he walked, and was slurring his speech. Id. at 17, 19. As
Appellant was incapable of operating the vehicle, Officer Vavaracalli decided
that it would be towed. Per departmental policy, Officer Vavaracalli performed
an inventory search of the vehicle to record its contents.2
On April 7, 2021, Appellant filed a motion to suppress the evidence,
generically arguing that the search violated Appellant’s rights under both the
Fourth Amendment to the United States Constitution and Article I, Section 8
of the Pennsylvania Constitution. Motion to Suppress, 4/7/21, at 1, ¶6.
Following a suppression hearing, the court denied the motion on September
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2 The Commonwealth’s brief cites the affidavit of probable cause, which was
not entered into the record, as establishing a firearm was recovered. There
is nothing in the record indicating from where in the vehicle the firearm was
recovered.
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7, 2021,3 and Appellant proceeded to a stipulated non-jury trial to preserve
the issue for appeal. Appellant filed a timely notice of appeal and complied
with the trial court’s order to file a concise statement of matters complained
of on appeal. Appellant raises two issues for our review:
1. Did the trial court err in denying [A]ppellant[’]s motion to
suppress when it determined Article 1, Section [8] of the
Pennsylvania Constitution and the Supreme Court Decision in
Commonwealth of Alexander [sic], 243 A[.]3d 177 ([Pa.]
2020) does not apply to an inventory search[?] Specifically[,] did
the trial court err in ruling that the constitutional protections cited
in Alexander are not applicable to an inventory search nor is an
inventory search subject to the requirements that a warrantless
search must have specific exigent circumstances as set forth in
Commonwealth v. Alexander, [s]upra[?]
2. Did the trial court err in determining that neither a search
warrant [n]or exigent circumstances for a warrantless search are
not [sic] required to conduct an inventory search of an individual’s
vehicle and as such the Pennsylvania Supreme Court[’s decision]
in Commonwealth v. Alexander, [s]upra does not apply in
[A]ppellant’s case[?]
Appellant’s Brief at 4-5.
Appellant’s core argument is that because Alexander held that the
federal automobile exception is incompatible with Article I, Section 8 of the
Pennsylvania Constitution, the Court necessarily eliminated the inventory
search exception to the warrant requirement as applied to automobiles. The
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3 Appellant requested permission to file a brief “within a week,” and the trial
court set a due date of July 7, 2021, with the Commonwealth having ten days
to reply. N.T. Suppression, 6/22/21, at 24-25. The certified record does not
contain any such briefs and the docket does not show any corresponding
entries. The trial court’s order of September 7, 2021 denying the motion
referenced “oral argument on August 18, 2021[.]” Order, 9/7/21. The
transcript of that proceeding was not ordered.
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Commonwealth submits that Alexander concerned only investigatory
searches for evidence of crime and therefore the inventory search exception
remains good law. Whether Alexander eliminated the exception presents a
pure question of law, and our standard of review is de novo. See
Commonwealth v. Pacheco, 227 A.3d 358, 366 (Pa. Super.
2020), aff'd, 263 A.3d 626 (Pa. 2021). An examination of Appellant’s
argument and Alexander’s impact, if any, on inventory searches requires a
brief discussion of federal law.
Both the Fourth Amendment and Article I, Section 8 prohibit
unreasonable searches. Pa. Const. art. I, § 8 (“The people shall be secure in
their persons, houses, papers and possessions from unreasonable searches
and seizure[.]”); U.S. Const. amend. IV (“The right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated[.]”). The text of each “does not specify
when a search warrant must be obtained.” Kentucky v. King, 563 U.S. 452,
459 (2011). The law is replete with exceptions to the warrant requirement,
i.e., a recognition that certain searches may be constitutionally reasonable
without a warrant issued by a neutral magistrate.
The inventory search that occurred in this case is one of those
exceptions. It is rooted in Cady v. Dombrowski, 413 U.S. 433 (1973), which
recognized that police officers frequently perform tasks unrelated to criminal
investigation.
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Local police officers, unlike federal officers, frequently investigate
vehicle accidents in which there is no claim of criminal liability and
engage in what, for want of a better term, may be described as
community caretaking functions, totally divorced from the
detection, investigation, or acquisition of evidence relating to the
violation of a criminal statute.
Id. at 441.
Cady involved a drunk off-duty Chicago police officer who crashed his
vehicle in Wisconsin. The vehicle was towed to a privately-owned garage.
The local authorities went to the garage to search the vehicle based on their
belief that Chicago officers were required to always carry their service
revolvers. Officers searched the vehicle for the firearm and discovered
evidence that ultimately led to a murder conviction.
In determining whether the warrantless search was reasonable, the
Cady Court deemed two facts significant. The first was that the vehicle
“constituted a nuisance along the highway,” thus justifying a tow. Id. at 443.
The second was that the lower courts had made a factual finding that the
search was a standard procedure by that police department “to protect the
public from the possibility that a revolver would fall into untrained or perhaps
malicious hands.” Id. That was important because it established that the
officer’s motivation was not to look for evidence of a crime; the governmental
interest of “concern for the safety of the general public who might be
endangered if an intruder removed a revolver from the trunk of the vehicle”
was constitutionally reasonable. Id. at 447.
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In South Dakota v. Opperman, 428 U.S. 364 (1976), the United
States Supreme Court announced the inventory search exception relied upon
by the Commonwealth in this case and cited Cady’s rationale. In that case,
the police lawfully impounded a vehicle that was illegally parked. At the
impound lot, an officer observed personal items in various parts of the car.
The officer had lot personnel unlock the door and, using a standard inventory
form, began recording the contents, including what was in the unlocked glove
compartment. The officer found marijuana in the glove compartment and
Opperman was charged with possession. The Opperman Court concluded
that the search was reasonable as the police “were indisputably engaged in a
caretaking search of a lawfully impounded automobile.” Id. at 375. Like
Cady, “there [was] no suggestion whatever that this standard procedure …
was a pretext concerning an investigatory police motive.” Id. at 376. Based
on Cady and other cases involving searches of vehicles that were impounded
or otherwise in police custody, the Court determined that these types of
searches are reasonable “where the process is aimed at securing or protecting
the car and its contents.” Id. at 373.
Opperman discussed two factors that were pertinent to its
reasonableness analysis: the “inherent mobility” of a vehicle makes “rigorous
enforcement of the warrant requirement … impossible.” Id. at 367.
Additionally, “less rigorous warrant requirements govern because the
expectation of privacy with respect to one’s vehicle is significantly less than
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that relating to one’s home or office.” Id. This reduced expectation of privacy
is due to the fact vehicles “are subjected to pervasive and continuing
governmental regulation and control[.]” Id. at 368. Over time, these two
rationales combined to justify the federal “automobile exception.” See
Collins v. Virginia, ––– U.S. ––––, 138 S. Ct. 1663, 1669–70 (2018) (“The
‘ready mobility’ of vehicles served as the core justification for the automobile
exception for many years. Later cases then introduced an additional rationale
based on the pervasive regulation of vehicles capable of traveling on the public
highways.”) (quotation marks and citations omitted).
In Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (OAJC), a plurality
of our Supreme Court determined that the federal automobile exception
applied in this Commonwealth. Alexander overruled Gary, holding that the
federal automobile exception is incompatible with the protections afforded by
Article I, Section 8. As that decision explained, the pre-Gary law “recognized
an automobile exception, but unlike its federal counterpart, ours was ‘limited’
in application.” Alexander, 243 A.3d at 187-88. Following Alexander, our
state constitution recognizes a limited automobile exception, which “requires
both a showing of probable cause and exigent circumstances to justify a
warrantless search of an automobile.” Id. at 181.
Appellant maintains that this quoted language is “clear, ... concise and
unequivocal.” Appellant’s Brief at 10. He argues that following Alexander a
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vehicle is to be treated identically to a home and thus no inventory search is
permitted.
Just as law enforcement could not remove a person from inside or
outside of their home who has an active arrest warrant and then
before securing the home, conduct an “inventory search” of the
home to protect the police from a potential civil claim of missing
items, they cannot search a person’s vehicle whether as a search
incident to an arrest or an inventory search. The law is to protect
an individual’s rights towards “all” of his possessions and “any”
place they may be. There can be no inventory search of a home
and there can be no inventory search of a citizen’s vehicle.
Id. at 13.
Appellant’s argument overlooks that the limited automobile exception is
doctrinally distinct from the inventory search exception. It is true that to some
degree, the United States Supreme Court’s adoption of the inventory search
exception relied on views concerning the expectation of privacy in an
automobile’s contents that Alexander rejects. But the specific federal
automobile exception rejected in Alexander requires the presence of
probable cause as a baseline requirement; an officer cannot perform a
vehicular search under either constitution if probable cause is absent. The
“automobile exception” therefore involves a fact pattern wherein the officers
are searching for evidence of a crime. As the Opperman Court explained,
“[t]he standard of probable cause is peculiarly related to criminal
investigations, not routine, noncriminal procedures.” Opperman, 428 U.S.
at 370 n.5. Thus, while Gary and Alexander both discuss warrantless
searches of a vehicle, the context of the case involves probable cause
supporting an investigatory search for evidence of a crime. An inventory
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search falls under “community caretaking” and thus does not involve probable
cause.
While no reported decision of this Court has squarely addressed the
inventory search exception’s viability following Alexander, other cases have
recognized the fundamental point that Alexander does not explicitly address
other exceptions to the warrant requirement. See Commonwealth v.
McMahon, 280 A.3d 1069, 1073 (Pa. Super. 2022) (“[The a]ppellant points
to nothing in Alexander which modified the plain view exception, and we
decline to apply Alexander.”); Commonwealth v. Lutz, 270 A.3d 571, 576
(Pa. Super. 2022) (“Alexander did not impact its ruling because its decision
did not rest upon the analytical underpinnings of the automobile exception to
the warrant requirement, but rather upon an application of the plain view and
search incident to arrest exceptions to the warrant requirement.”) (internal
quotation marks and citation to trial court opinion omitted). See also
Commonwealth v. Heidelberg, 267 A.3d 492, 505 (Pa. Super. 2021)
(concluding that any Alexander claim was waived due to failure to preserve
the argument but concluding in the alternative that “the bags of crack cocaine
would have been lawfully – and inevitably – discovered during an inventory
search”). Our courts recognize the “axiom that the holding of a judicial
decision is to be read against its facts.” Oliver v. City of Pittsburgh, 11
A.3d 960, 966 (Pa. 2011). The relevant factual context in Alexander and
Gary was a search for evidence of a crime and the corresponding need to
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establish probable cause to search.4 The case therefore does not eliminate
the inventory search exception.
We note that Appellant appears to suggest that this was not a “true”
inventory search. Opperman recognized that a “probable-cause approach is
unhelpful when analysis centers upon the reasonableness of routine
administrative caretaking functions, particularly when no claim is made that
the protective procedures are a subterfuge for criminal investigations.”
Opperman, 428 U.S. at 370 n.5. Appellant’s argument alludes to this
possibility. Appellant’s Brief at 15 (“It’s clear from the Officer’s testimony that
he suspected criminal activity [by Appellant] and he was being arrested on an
outstanding warrant.”). The trial court did not make explicit credibility
findings in this regard, but its opinion implicitly rejected Appellant’s theory.
The trial court stated:
Officer Vavaracalli testified that … Appellant’s car in the instant
matter, was blocking both the AAMCO Auto’s entrance and
blocking multiple cars into their parking spots. Officer Vavaracalli
had the authority to impound … Appellant’s vehicle because, as he
testified, … Appellant’s vehicle was stopped in such a way that it
was impeding the flow of traffic and obstructing a commercial
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4 We add that reading the references in Alexander to “warrantless searches
of a car” to govern every search of a car, including non-investigatory searches
like this one, produces absurd results. For example, a consent search is a
warrantless search. “It is equally well settled that one of the specifically
established exceptions to the requirements of both a warrant and probable
cause is a search that is conducted pursuant to consent.” Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973). Appellant’s logic would have us
conclude that a consent search of a vehicle is no longer permitted following
Alexander.
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business. Officer Vavaracalli was permitted to conduct an
inventory search of [Appellant]’s vehicle.
Trial Court Opinion, 2/1/22, at 8. The trial court implicitly credited the
testimony that the tow was conducted pursuant to standard police procedures
and was not a subterfuge for investigating criminal activity. See
Commonwealth v. Lagenella, 83 A.3d 94, 102 (Pa. 2013) (“An inventory
search of an automobile is permissible when (1) the police have lawfully
impounded the vehicle; and (2) the police have acted in accordance with a
reasonable, standard policy of routinely securing and inventorying the
contents of the impounded vehicle.”). Both conditions were met and thus the
search was lawful.
Finally, it may be the case that some of the analysis in Alexander
regarding a citizen’s privacy interests in his or her vehicle undermines the
categorical applicability of the inventory search exception. Appellant argues
that, following Alexander, a car is on equal footing with a home, and because
a home inventory search could not be conducted an automobile inventory
search cannot, either. We are not persuaded by this argument. First, the
cited example of serving an active arrest warrant serves a criminal purpose
and does not fall under the “community caretaking” rationale that supports
the inventory search exception. Cf. Caniglia v. Strom, --- U.S. ----, 141 S.
Ct. 1596, 1598 (2021) (warrantless search of home was not justified on basis
that resident may have been suicidal and a risk to himself or others; “Cady’s
acknowledgment of these ‘caretaking’ duties” does not “create[ ] a standalone
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doctrine that justifies warrantless searches and seizures in the home”).
Second, the inventory search exception does not solely rely on protecting the
police from claims against the police. See Opperman, 428 U.S. at 378(Powell, J., concurring) (observing that “three interests generally have been
advanced in support of inventory searches: (i) protection of the police from
danger; (ii) protection of the police against claims and disputes over lost or
stolen property; and (iii) protection of the owner’s property while it remains
in police custody.”).
That said, Alexander may well support some limitations on the
inventory search exception, as expressed by the dissenting Justices in
Opperman. See id. at 392 (Marshall, J. dissenting) (arguing that, at
minimum, an inventory search cannot take place if the car owner declines; “It
is at least clear that any owner might prohibit the police from executing a
protective search of his impounded car, since by hypothesis the inventory is
conducted for the owner’s benefit.”); see also Colorado v. Bertine, 479 U.S.
367, 385 (1987) (Marshall, J., dissenting) (noting that in Opperman the
vehicle’s owner was not present when the vehicle was towed; “In this case,
however, the owner was present to make other arrangements for the
safekeeping of his belongings[.]”) (quotation marks and citation omitted).
The Alexander Court’s rejection of the United States Supreme Court’s views
on the privacy interests involved in an automobile may well support some
limitations on the inventory search doctrine. See Bertine, 479 U.S. at 386
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(“Not only are the government’s interests weaker here than in Opperman …
but respondent’s privacy interest is greater.”) (Marshall, J., dissenting).
Here, however, Appellant argues that Alexander simply eliminated the
inventory search exception in total. We thus have no occasion to address
these types of arguments.
Judgment of sentence affirmed.
President Judge Panella joins this opinion.
Judge Sullivan concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/7/2023
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