Opinion
No. 41 MAP 2018
08-22-2019
COMMONWEALTH of Pennsylvania, Appellee v. Jeffery Charles MAGUIRE, Appellant
OPINION
In Commonwealth v. Tarbert , 517 Pa. 277, 535 A.2d 1035 (1987) (plurality), and Commonwealth v. Blouse , 531 Pa. 167, 611 A.2d 1177 (1992), this Court adopted guidelines for assessing the constitutionality of government-conducted systematic vehicle checkpoints to which the entirety of the public are subjected. Our primary task in this appeal is to examine whether the Tarbert/Blouse guidelines are applicable to statutorily authorized warrantless inspections of commercial vehicles. We hold that these guidelines are inapplicable in assessing the constitutionality of statutorily authorized warrantless inspections of commercial vehicles; instead, such inspections should be scrutinized in accord with the test outlined by the United States Supreme Court in New York v. Burger , 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), and adopted by this Court in Commonwealth v. Petroll , 558 Pa. 565, 738 A.2d 993 (1999), which we discuss in detail infra . Because a panel of the Superior Court, in a two-to-one majority decision, reached the correct result, we affirm that court's judgment, which reversed a trial court's order granting a motion to suppress evidence filed by Jeffery Maguire ("Appellant").
I. Background
We glean our summary of this matter primarily from the trial court's findings-of-fact entered after a hearing on a motion to suppress the evidence filed by Appellant. Trial Court Opinion and Order, 3/22/2016, at ¶¶ 1-35. The court's findings are supported by the record.
On May 20, 2015, the Pennsylvania State Police and the Pennsylvania Department of Environmental Protection ("DEP") set up a commercial vehicle inspection program authorized by Subsection 4704(a)(2) of the Vehicle Code, 75 Pa.C.S. § 4704(a)(2), which provides as follows:
(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.
The inspection program was scheduled approximately one month in advance and occurred at a Clinton County landfill located in the Village of McElhatten. Pennsylvania State Trooper Cory Beaver, a Motor Vehicle Enforcement Officer, and a Motor Carrier Enforcement Supervisor comprised the three person Commercial Vehicle Enforcement Team ("Team") that conducted the checkpoint inspections. The Team was stationed in a lot in front of the scale house near the entrance of the landfill. They established and utilized a procedure whereby the first Team member available would stop the next truck entering the landfill.
At approximately 2:50 p.m., it was Trooper Beaver's turn to inspect a truck when he observed a red and white International tri-axle dump truck about to enter the Landfill. The trooper exited his vehicle and motioned for that truck to pull into the lot where the Team was located. The driver of that vehicle was Appellant, and he complied with the trooper's request. Trooper Beaver then approached the truck.
Appellant opened the truck's driver's side door, and Trooper Beaver engaged Appellant in conversation. The trooper asked Appellant to provide him with documents pertinent to the truck and its operation before he began the actual inspection of the truck. During the course of this conversation, the trooper detected the smell of alcohol on Appellant's breath. Trooper Beaver then conducted a "Level Two" inspection, which included a review of Appellant's documents and a walk-around inspection of the truck, checking its lights, horn, wipers, tires, and wheels.
Following the inspection, Trooper Beaver had Appellant exit the truck, told him that he smelled of alcohol, and asked whether he had been drinking. Appellant stated that he drank one beer on his trip to the landfill. At that point, the trooper noticed a cooler on the floor of the truck near the gearshift. The trooper inquired as to the contents of the cooler, and Appellant responded that he had placed water and beer in it. The trooper observed that the cooler contained a yellow plastic bag that was wet from ice, three twelve-ounce cans of Busch Light beer, and one or two bottles of water. Trooper Beaver then had Appellant perform field sobriety testing, which Appellant ultimately failed. The trooper arrested Appellant, who was transported to the Jersey Shore Hospital for blood testing. The Commonwealth charged Appellant with several counts of driving under the influence ("DUI"), as well as five counts of unlawful activities.
Appellant subsequently filed a motion to suppress the evidence. In that motion, Appellant contended that, to meet Fourth Amendment constitutional search and seizure requirements, the Team's inspection program needed to comply with the Tarbert/Blouse guidelines, which were promulgated to test the constitutionality of systematic, police-conducted vehicle checkpoints. Regarding these guidelines, Appellant noted, this Court has explained that to pass constitutional muster under Tarbert/Blouse , a vehicle 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 , 598 Pa. 470, 957 A.2d 720, 725 (2008).
Citing to the Superior Court's decision in In re J.A.K. , 908 A.2d 322 (Pa. Super. 2006) (applying the Tarbert/Blouse guidelines to a seatbelt checkpoint), Appellant argued that, like checkpoints applicable to the general public, commercial vehicle safety checkpoints must comply with the Tarbert/Blouse guidelines to survive a constitutional challenge. Appellant solely asserted that the inspection checkpoint to which he was subjected on May 20, 2015, failed to meet these guidelines. Because Appellant believed that Trooper Beaver unconstitutionally searched and seized him as part of the inspection program, he argued that the trial court should suppress any evidence discovered as "fruit of the poisonous tree."
On March 14, 2016, the trial court held a hearing on Appellant's motion to suppress. Trooper Beaver was the only witness to testify at the hearing, and he testified to the facts as stated above. In terms of legal arguments, Appellant reiterated his position that the May 20th inspection of his dump truck was unconstitutional because the Team's program failed to comply with the Tarbert/Blouse guidelines. For its part, the Commonwealth contended that the Tarbert/Blouse guidelines are inapplicable to commercial vehicle safety checkpoints that are authorized by statute. In this regard, the Commonwealth highlighted that Section 4704 of the Vehicle Code specifically allows for systematic inspections of trucks like the program conducted by the Team on May 20, 2015.
At the end of the suppression hearing, the trial court stated that the parties could submit post-hearing legal memoranda, and the Commonwealth took advantage of that opportunity. In its memorandum, the Commonwealth renewed its contention that the Tarbert/Blouse guidelines do not apply to statutorily authorized commercial vehicle inspections. In support of its position, the Commonwealth invoked several cases, including Commonwealth v. Petroll , 558 Pa. 565, 738 A.2d 993 (1999), for the proposition that "[t]ruck drivers of commercial vehicles are part of a closely regulated industry that, due to public safety concerns, are entitled to less Fourth Amendment protections tha[n] those of regular drivers on the highways." Commonwealth's Memorandum of Law, 3/16/2016, at 1.
According to the Commonwealth, pursuant to Petroll , warrantless inspections of vehicles involved in a closely regulated industry are constitutionally permissible if: (1) there is a substantial government interest that informs the regulatory scheme pursuant to which the inspections are made; (2) warrantless inspections are necessary to further the regulatory scheme; and (3) the statute's inspection program, in terms of certainty and regularity of its application, provides a constitutionally adequate substitute for a warrant, i.e. , the regulatory statute must perform the two basic functions of a warrant: it must advise the owner of the commercial business 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. The Commonwealth insisted that the commercial vehicle inspection program that occurred in this case was authorized by Section 4704 of the Vehicle Code and met these constitutional requirements.
On March 22, 2016, the trial court entered an opinion and order granting Appellant's motion to suppress. In so doing, the court observed that in Commonwealth v. Garibay , 106 A.3d 136 (Pa. Super. 2014) (applying the Tarbert/Blouse guidelines to a seatbelt checkpoint), the Superior Court held that there is no difference in the standards required for establishing DUI and non-DUI checkpoints. Based upon this premise, the trial court concluded that the Tarbert/Blouse guidelines apply to the commercial vehicle inspection program to which Appellant was subjected. The court ultimately determined that the Commonwealth failed to prove that the program met three of the five guidelines, namely: (1) that there was sufficient warning of the checkpoint; (2) that the decision to conduct the checkpoint was subject to prior administrative approval; and (3) that the choice of time and place for the checkpoint was based on local experience as to where and when violating drivers were likely to be traveling. The Commonwealth timely filed a notice of appeal, certifying that the trial court's order will terminate or substantially handicap the prosecution. Pa.R.A.P. 311(d).
On appeal, the Commonwealth again argued that the Tarbert/Blouse guidelines do not apply to statutorily authorized inspections of commercial vehicles and that the Team's May 20, 2015, inspection program met the appropriate constitutional standards. In a published opinion, a majority of a three-judge Superior Court panel agreed with the Commonwealth and, thus, reversed the trial court's order. Commonwealth v. Maguire , 175 A.3d 288 (Pa. Super. 2017). In so doing, the Superior Court initially discussed the United States Supreme Court's decision in New York v. Burger , 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987).
According to the Superior Court, the Burger Court recognized an exception to the Fourth Amendment warrant requirement, holding that an owner or operator of a commercial business or vehicle in a closely regulated industry has a substantially reduced expectation of privacy, and therefore, the warrant and probable cause requirements applicable to these individuals are lower. The Superior Court stated that the Burger Court also concluded, in the context of closely regulated industries, that a warrantless inspection is constitutional if: (1) there is a substantial governmental interest informing the regulatory scheme pursuant to which the inspection was made; (2) warrantless inspections are necessary to advance the regulatory scheme; and (3) the statute's inspection program is applied with such certainty and regularity as to prove a constitutionally adequate substitute for a warrant. The Superior Court noted that, in Burger , the High Court "ultimately held that a valid administrative inspection without a warrant that uncovers evidence of a crime does not violate the Fourth Amendment." Maguire , 175 A.3d at 291.
Next, the Superior Court turned its attention to Petroll , supra , where this Court addressed the constitutionality of a warrantless search of a tractor-trailer immediately after the driver of that vehicle, Petroll, caused a deadly crash. Important to this matter, the Petroll Court held that trucking is a closely regulated industry and that the three-factor Burger test controlled whether the warrantless search of Petroll's truck survived constitutional scrutiny. After applying that test, the Court ultimately concluded that the search of Petroll's truck was unconstitutional.
Turning back to the matter sub judice , the Superior Court, consistent with Petroll , held that the trucking industry is closely regulated and that businesses and individuals engaged in that industry have a lower expectation of privacy than people driving their personal vehicles. The court then opined that, because these businesses and individuals (including commercial vehicles) have a lower expectation of privacy, the Tarbert/Blouse guidelines, which gauge the constitutionality of safety checkpoints to which the entire public are subjected, do not apply to inspections specifically aimed at commercial vehicles in the trucking industry. Stated differently, the court determined that commercial vehicle inspection programs authorized by statute must meet the less stringent Burger/Petroll test to pass constitutional muster, as closely regulated industries and those engaged in those industries have a lesser expectation of privacy than the public generally.
Next, the Superior Court analyzed whether warrantless inspections conducted pursuant to Subsection 4704(a)(2) of the Vehicle Code comply with the principles reiterated in Petroll . In other words, the court constitutionally scrutinized Subsection 4704(a)(2). The court concluded that Subsection 4704(a)(2) "easily" satisfies the first Burger factor. Id. at 293. Indeed, the court noted that, in Petroll , this Court concluded that Subsection 4704(a)(2) is part of a statutory scheme that regulates the trucking industry, advancing the substantial government interest in ensuring road safety. The court also held that the systematic vehicle inspection program authorized by Subsection 4704(a)(2) meets the second Burger criterion because it "advances the government interest by removing unsafe vehicles from the roadways before accidents occur." Id. (citing Petroll , 738 A.2d at 1003 ). Stated differently, warrantless inspections are necessary to further Subsection 4704(a)(2)'s scheme of surprise government inspections of potentially dangerous vehicles engaged in the trucking industry.
The Superior Court further concluded that Subsection 4704(a)(2) satisfies the third Burger factor because "it advises the operator of a commercial vehicle that the regulatory search is being made pursuant to the law, it has a properly defined scope, and it limits the discretion of inspecting officers." Id. The court, therefore, held that Subsection 4704(a)(2), "on its face, is sufficiently comprehensive and defined so that a commercial truck driver is informed that his truck may be subject to periodic administrative inspections undertaken to ensure that the truck complies with DOT regulations and is road-safe." Id. (citing Burger , 482 U.S. at 703, 107 S.Ct. 2636, and Petroll , 738 A.2d at 1004 ).
The court bolstered this holding by referring to Trooper Beaver's testimony at the suppression hearing. According to the court, "Trooper Beaver's uncontradicted testimony at the suppression hearing supports this conclusion as it provided an understanding of the limits on the system of inspection and the lack of discretion the inspectors had in selecting which trucks to inspect." Id. For these reasons, the Superior Court found that the inspection at issue was constitutionally sound and that the trial court erred by holding to the contrary.
One jurist authored a dissent. The dissent agreed with the majority that, because trucking is a closely regulated industry, the Team's inspection program had to comply with the three-factor Burger test. However, the dissent suggested that both commercial and non-commercial vehicles are heavily regulated. To support this suggestion, the dissent highlighted, inter alia , some historical aspects of the Vehicle Code.
Specifically, the dissent observed that, in 1985, the Legislature amended Section 4704, which addresses police inspection programs of commercial vehicles, as well as Section 6308 of the Vehicle Code, 75 Pa.C.S. § 6308, which pertains to police inspection programs of non-commercial vehicles. According to the dissent, "[t]hese 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." Maguire , 175 A.3d at 299 (Lazarus, J., dissenting). The dissent opined that "the statutory language, the interests promoted, and the evils to be addressed by section 4704(a)(2) and section 6308(a)(2) are identical," id. , and, thus, suggested that the Tarbert/Blouse guidelines necessarily should apply to both commercial and non-commercial vehicle inspection programs.
Most relevant to this appeal, Section 6308 provides:
Authority of police officer. Whenever a police officer is engaged in a systematic program of checking vehicles or drivers or has reasonable suspicion that a violation of this title is occurring or has occurred, he may stop a vehicle, upon request or signal, for the purpose of checking the vehicle's registration, proof of financial responsibility, vehicle identification number or engine number or the driver's license, or to secure such other information as the officer may reasonably believe to be necessary to enforce the provisions of this title.
75 Pa.C.S. § 6308(b).
The dissent further asserted that the Burger test and the Tarbert/Blouse guidelines are compatible because they both limit the discretion of inspecting officers. In the dissent's view, "the Tarbert/Blouse guidelines provide a practical framework for ensuring that the inspection program provides a constitutionally adequate substitute for a warrant." Id. For these reasons, the dissent took the position that the Tarbert/Blouse guidelines apply to commercial vehicle inspections.
The dissent ultimately concluded that the record supports the trial court's finding that the Team's inspection program failed to comply with the Tarbert/Blouse guidelines. In particular, the dissent agreed with the trial court's conclusion that "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." Id. at 300. Instead, the dissent posited, the Team's procedure allowed for officer discretion because it "permitted each of the officers to perform inspections and, when available, the officer could inspect the next truck that entered the landfill." Id. Thus, the dissent speculated, "if all of the officers on the [T]eam were occupied with inspections, one truck, or many, could enter the landfill without inspection." Id. Because the dissent believed that this procedure allowed officers too much discretion as to which trucks would be stopped and inspected, the dissent concluded that the Team's inspection program violated the Tarbert/Blouse guidelines and, therefore, was unconstitutional. Accordingly, the dissent would have affirmed the order granting Appellant's motion to suppress.
Appellant filed a petition for allowance of appeal, which this Court granted to address the following issues, as he framed them:
1. Whether the Superior Court committed an error of law/abuse of discretion in reversing the trial court's suppression of the evidence obtained during the commercial vehicle stop based upon failure to abide by the Tarbert/Blouse guidelines?
2. Whether the Superior Court committed an error of law/abuse of discretion in determining that the Tarbert/Blouse guidelines do not apply to commercial vehicle check-points?
3. Whether the Superior Court committed an error of law/abuse of discretion in failing to affirm the decision of the trial court on alternate grounds?
Commonwealth v. Maguire , 190 A.3d 1130 (Pa. 2018).
II. Primary Issue: Whether the Tarbert/Blouse guidelines or the Burger/Petroll test apply to government inspection programs of commercial vehicles.
We begin by addressing Appellant's claim that the Superior Court erred by concluding that the Tarbert/Blouse guidelines are inapplicable to government inspection programs of commercial vehicles. In cursory fashion, Appellant adopts the reasoning of the Superior Court dissent in arguing that the Tarbert/Blouse guidelines apply with equal force to government inspection programs of both commercial and non-commercial vehicles. Appellant's Brief at 17-20.
This issue presents the Court with a question of law. Thus, like all questions of law, our standard of review is de novo , and our scope of review is plenary. Skotnicki v. Ins. Dep't , 644 Pa. 215, 175 A.3d 239, 247 (2017). We further note two aspects regarding the manner in which we review suppression orders generally. First, "[w]e are bound by the suppression court's factual findings so long as they are supported by the record[.]" Commonwealth v. Yandamuri , 639 Pa. 100, 159 A.3d 503, 516 (2017). Second, "[o]ur scope of review of suppression rulings includes only the suppression hearing record ...." Id.
The core of the Commonwealth's argument largely echoes the reasoning of the Superior Court majority. The Commonwealth concedes that the Tarbert/Blouse guidelines provide an exception for police to conduct warrantless vehicle stops. The Commonwealth, however, highlights that, in Burger , supra , the United States Supreme Court held that a different, less rigorous exception to the Fourth Amendment's warrant requirement exists for closely regulated industries. Citing to a string of cases including Petroll , the Commonwealth emphasizes that commercial vehicles, like Appellant's dump truck, are part of a closely regulated industry. Accordingly, the Commonwealth posits that the three-factor Burger test is specifically designed to address the constitutionality of statutorily authorized warrantless inspections of commercial vehicles, rendering the Tarbert/Blouse guidelines inapplicable to such inspections. For the reasons that follow, we agree with the Commonwealth.
In Tarbert , this Court addressed whether police-conducted sobriety checkpoints, which apply to the public generally, violate Article I, Section 8 of the Pennsylvania Constitution, which, similar to the Fourth Amendment, prohibits unreasonable searches and seizures. The Court was unable to reach a majority position in Tarbert . However, the Opinion Announcing the Judgment of the Court ("OAJC") acknowledged several indisputable principles of law. For example, the OAJC explained that people have less of an expectation of privacy in their vehicles than they do in their homes but that occupants of vehicles do not forfeit all expectations of privacy. Tarbert , 535 A.2d at 1038 (plurality) (citing Delaware v. Prouse , 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) ).
It is well settled that when a government agent stops a vehicle and detains its occupants, a seizure has occurred that is subject to constitutional restraints. Blouse , 611 A.2d at 1178.
To ensure that police officers do not encroach on the constitutional rights of drivers during systematic sobriety checkpoints conducted without a warrant, the OAJC suggested the guidelines discussed above, namely:
(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.
Worthy , 957 A.2d at 725 ; Tarbert , 535 A.2d at 1043 (plurality).
Subsequently, this Court decided Blouse , which involved the constitutionality of a checkpoint set up by police to detect license, registration, and equipment violations. Thus, the Blouse Court was confronted with a more generic issue than that presented in Tarbert : whether systematic, non-discriminatory, non-arbitrary safety checkpoints conducted by police are constitutionally permissible under Article I, Section 8 of the Pennsylvania Constitution. In addressing this issue, a majority of the Blouse Court expressly adopted the Tarbert guidelines for purposes of assessing generally applicable, systematic safety checkpoints because the guidelines "achieve the goal of assuring an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field." Blouse , 611 A.2d at 1180. Thus, Blouse makes clear that, when police set up a checkpoint to which all drivers will be subject, the checkpoint must substantially comply with the Tarbert/Blouse guidelines to survive constitutional scrutiny. Id. at 1180-81.
In contrast to the generally applicable searches and seizures that occur at the checkpoints at issue Tarbert and Blouse , in Petroll , this Court was confronted with how to examine the constitutionality of warrantless searches of commercial vehicles. See Petroll , 738 A.2d at 996 ("The present appeal questions whether the warrantless searches of Appellant's tractor-trailer and subsequent seizures of evidence violate Article I, Section 8 of the Pennsylvania Constitution and the Fourth Amendment to the United States Constitution."). In performing this task, the Court cited to Burger and stated, "Some industries have such a true history of government oversight that owners of those closely regulated businesses should have little or no expectation of privacy. Depending on the statutory scheme, owners of certain closely regulated businesses should expect that their businesses would be subject to warrantless administrative searches." Id. at 1000 (citation omitted).
The Court then explained that, in Burger , supra , the United States Supreme Court held that warrantless searches of closely regulated businesses will be deemed reasonable if: (1) there is a substantial government interest that informs the regulatory scheme pursuant to which the inspection was made; (2) warrantless inspections are necessary to further that regulatory scheme; and (3) the statute's inspection program, in terms of the certainty and regularity of its application, provides 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." Id. at 1000-01 (quoting Burger , 482 U.S. at 703, 107 S.Ct. 2636 ). In applying this test to the circumstances at issue in Petroll , the Court expressly determined that trucking is a closely regulated industry. Id. at 1001.
A review of Tarbert , Blouse , Petroll , and Burger makes clear that the Tarbert/Blouse guidelines test the constitutionality of government-conducted checkpoints to which all drivers are subjected. Conversely, the Burger/Petroll test is designed to examine the constitutionality of statutorily authorized government inspections that are aimed at and limited to closely regulated industries, which have a lesser expectation of privacy than the public generally. Further, it is indisputable that the government inspection authorized by Subsection 4704(a)(2) and which took place in this case was aimed at the trucking business, which is a closely regulated industry.
Consequently, contrary to Appellant's position throughout this litigation, we hold that the Tarbert/Blouse guidelines are inapplicable to statutorily authorized government inspections of commercial vehicles, like the inspections permitted by Subsection 4704(a)(2) of the Vehicle Code. Rather, as the Superior Court correctly concluded, the constitutionality of these inspections is measured by the less stringent three-factor Burger/Petroll test.
Given these conclusions, we need not address Appellant's contention that the Team's inspection program failed to meet the Tarbert/Blouse guidelines. Appellant's Brief at 13-17. That does not end our inquiry, however, as Appellant offers several alternative arguments in support of his position that, even if the Tarbert/Blouse guidelines do not apply to commercial vehicle inspection programs, the Superior Court nonetheless erred by reversing the trial court's order. Id. at 20-29. We will address these alternative arguments seriatim .
III. Alternative Arguments
Appellant initially asserts that the Team's inspection program failed to meet the requirements of the Burger/Petroll test. In so doing, Appellant challenges particular aspects of the inspection that occurred in this case. For example, Appellant contends that, by setting up the inspection on a private lane leading to the entrance of the landfill, the Team's inspection program failed to meet the legitimate government goal of removing unsafe vehicles from roadways. Id. at 21-22. In general, Appellant suggests that various factual circumstances underlying the warrantless inspection of his truck "extended beyond that necessary to determine if the vehicle being operated by [ ] Appellant was unsafe for operation of public roadways." Id. at 24.
In response, the Commonwealth posits that the Team's inspection program was constitutional because it met all three prongs of the Burger/Petroll test. Commonwealth's Brief at 32.
Appellant's argument evinces a misunderstanding of the Burger/Petroll test. As the First Circuit of the United States Court of Appeals aptly explained, "The Burger criteria apply to a regulatory scheme generally, not to the particular search at issue. In other words, the Burger criteria are applied generally to a statutory scheme, not to a given set of facts arising under that scheme." United States v. Maldonado , 356 F.3d 130, 136 (1st Cir. 2004) (citation omitted); see , e.g. , Burger , supra (examining the constitutionality of a New York statutory scheme that allows surprise, warrantless inspections of vehicle dismantling businesses). Accordingly, Appellant's argument fails on its face.
Citing to Doe v. City of San Diego , 198 F.Supp.3d 1153 (S.D. Cal. 2016), Chief Justice Saylor disagrees with the First Circuit's conclusion that the Burger criteria apply to a regulatory scheme and not to the particular search at issue. Concurring Opinion at 578–79. Yet, nothing in Doe undermines this conclusion. In fact, Doe entirely supports the First Circuit's reasoning that a Burger analysis focuses on the codified governmental scheme at issue, not the factual circumstances of a particular inspection. Doe , 198 F.Supp.3d at 1163 (citing to and quoting Burger , stating, "Among other things, warrantless searches and seizures on commercial property in pervasively regulated industries are constitutionally permissible if the underlying statute's inspection program, ‘in terms of the certainty and regularity of its application, [provides] a constitutionally adequate substitute for a warrant.’ To comply with this requirement, the statute must have ‘a properly defined scope, and it must limit the discretion of the inspecting officers.’ To properly limit the discretion of the inspectors, the statute ‘must be carefully limited in time, place, and scope.’) (citations omitted) (emphasis added).
To be clear, we agree with the Chief Justice that a defendant can bring an "as applied" challenge to a search allegedly conducted pursuant to a statute. In such a circumstance, a defendant could object to the governmental inspection on the basis that it exceeded the scope of or otherwise was contrary to statutory authority and, in turn, was unconstitutional. If there were merit to the statutory aspect of the defendant's challenge, then the government would be required to demonstrate that the search comported with traditional standards related to warrantless searches, not with the Burger/Petroll criteria. As we discuss in detail infra , Appellant did not raise such a challenge in his motion to suppress.
Appellant's final contention involves a statutory-based claim. Appellant's Brief at 24-27. He suggests that the Team's inspection program was not "systematic," as required by Subsection 4704 of the Vehicle Code. See , e.g. , id. at 27 ("Therefore, as the inspection program being conducted in the within matter is not ‘systematic,’ it has failed to abide by the terms of Section 4704, thus converting the interactions with [Appellant] into a warrantless search with no statutory authority."). More specifically, Appellant maintains that the procedure utilized by the Team provided too much discretion to the inspecting officers. In support of this position, Appellant asserts, notably without record support, that "if the officer took some extra time dealing with one vehicle, he could allow other vehicles to bypass the checkpoint, while, if he wished to examine [a] particular vehicle, he could simply end his interaction with his current inspection and ask the oncoming vehicle to submit to inspection." Appellant's Brief at 25.
We acknowledge that Appellant did argue at the suppression hearing that the Team's inspection program was not systematic. However, Appellant presented this argument within the context of the only issue that he raised in his motion to suppress, namely, that the Team's inspection of his truck was unconstitutional because it failed to comply with the Tarbert/Blouse guidelines. To illustrate, while explaining to the trial court why the Team allegedly did not perform its inspection systematically, Appellant's counsel stated, "The case law basically says it must not be left to the unfettered discretion of the officers at the scene." N.T., 3/14/2016, at 18. This statement clearly invoked the fifth prong of the Tarbert/Blouse guidelines; it did not challenge the systematic requirement of Subsection 4704(a)(2). See Worthy , 957 A.2d at 725 (describing the fifth Tarbert/Blouse guideline as requiring that "the decision as to which vehicles to stop at the checkpoint ... must not be left to the unfettered discretion of the officers at the scene"). Thus, because Appellant raises this statutory-based claim for the first time on appeal, it is waived. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").
In their responsive opinions, Chief Justice Saylor and Justice Wecht disagree with our conclusion that Appellant waived his statutory-based argument. Concurring Opinion at 579–81 (Saylor, J., concurring); Concurring and Dissenting Opinion at 584–86 (Wecht, J., concurring and dissenting). Both of my colleagues suggest that, because Appellant prevailed on his motion to suppress and was an appellee in the Superior Court, Appellant had no issue-preservation obligations in the Superior Court.
The Pennsylvania Rules of Criminal Procedure, however, make clear that a motion to suppress must "state specifically and with particularity," inter alia , "the grounds for suppression." Pa.R.Crim.P. 581(D). The Comment to Rule 581 further provides that all motions to suppress must comply with Rule of Criminal Procedure 575. Comment to Pa.R.Crim.P. 581. Rule 575, in turn, plainly states that "[t]he failure, in any motion, to state a type of relief or ground therefor shall constitute a waiver of such relief or ground." Pa.R.Crim.P. 575(A)(3).
Here, Appellant's motion to suppress and his argument at the suppression hearing focused exclusively on his contention that the inspection of his vehicle was unconstitutional because it failed to comply with the Tarbert/Blouse standards. He did not claim, as he does for the first time in this appeal, that suppression is required because the Team's inspection did not comply with the requirements of Subsection 4704(a)(2). Thus, Appellant waived this ground for purposes of challenging the legality of the inspection.
Lastly, if, as my colleagues seem to suggest, Appellant intended his statutory-based argument to demonstrate that the inspection in this case failed to meet the third prong of the Burger/Petroll standard, then the argument fails because it focuses on the search at issue and not Subsection 4704(a)(2) specifically, which, as discussed supra , is a misguided analysis.
IV. Conclusion
Because Appellant has not presented the Court with any issue or argument that warrants relief, we affirm the Superior Court's judgment, which reversed the trial court order granting Appellant's motion to suppress. The matter is remanded to the trial court for further proceedings.
Justices Dougherty and Mundy join the Opinion.
Chief Justice Saylor and Justice Todd join the opinion with respect to Parts I, II, and IV, and concur in the result as to Part III.
Justices Wecht and Donohue join the opinion with respect to Part I, concur in the result as to Part II, and dissent as to Parts III and IV.
Chief Justice Saylor files a concurring opinion in which Justice Todd joins.
Justice Wecht files a concurring and dissenting opinion in which Justice Donohue joins.
CONCURRING OPINION
CHIEF JUSTICE SAYLOR
I join parts I, II, and IV of the lead opinion, and respectfully concur in the result as to Part III.
I agree with the lead opinion that the applicable standard is that set forth in New York v. Burger , 482 U.S. 691, 107 S. Ct. 2636, 96 L.Ed.2d 601 (1987), and summarized in Commonwealth v. Petroll , 558 Pa. 565, 738 A.2d 993 (1999). I also agree that Appellant cannot prevail on his challenge to the legality of the inspection of his truck. However, I am not fully aligned with the lead Justices' analysis.
As the lead Justices note, Appellant argues the inspection failed to satisfy the second prong of the Burger/Petroll standard, which requires that the warrantless inspection be necessary to further the overall regulatory scheme. See Burger , 482 U.S. at 702, 107 S. Ct. at 2644. In particular, Appellant observes that the search was conducted on a private lane between the public road and the landfill, and that the troopers required that drivers open their door rather than roll down their window, and he argues that neither circumstance was necessary to ensure vehicle safety. See Brief for Appellant at 21-24; see also Lead Opinion, at 576. The lead Justices respond by asserting, essentially, that this is irrelevant because, under the second prong of the Burger/Petroll standard, only the authorizing statute need pass constitutional scrutiny. See id. I would note, however, that all three prongs of the Burger standard, on their face, only pertain to the authorizing statute, as only the statute was at issue in that case. The same was true in Donovan v. Dewey , 452 U.S. 594, 101 S. Ct. 2534, 69 L.Ed.2d 262 (1981) (rejecting a Fourth Amendment challenge to warrantless searches under the Federal Mine Safety and Health Act of 1977), on which Burger heavily relied.
Appellant also complains that Trooper Beaver had him exit his truck. He overlooks that this occurred after the trooper developed a suspicion, based on an odor of alcohol he perceived during the administrative inspection, that Appellant might have been driving while intoxicated.
In this sense, Appellant was no differently situated from a potentially intoxicated driver who is subjected to a valid traffic stop based on an independent violation of the Vehicle Code. In any event, a valid administrative warrantless search which uncovers evidence of criminality does not violate the Fourth Amendment. See Petroll , 558 Pa. at 584, 738 A.2d at 1004.
Subsection 4704(a)(2) provides as follows:
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. § 4704(a)(2).
The Fourth Amendment protects against unreasonable searches and seizures, see U.S. CONST. amend. IV, and not merely legislation which authorizes unreasonable searches and seizures. It therefore seems unsatisfactory, to my mind, to dismiss as irrelevant a defendant's claim that the location and scope of the warrantless searches actually conducted pursuant to an authorizing statute failed to advance the stated governmental interest sufficiently to comport with Burger/Petroll . Rather, I believe the factors Appellant presently identifies should be viewed as part of the overall warrantless-search regime – which the Commonwealth itself portrays as subsuming the training and certification of the officers on the scene. See Brief for Commonwealth at 21. As such, I believe that such factors, if they exist in relation to the search actually conducted, should be tested against the Burger/Petroll requirements. Hence, I respectfully disagree with the federal appellate court's suggestion to the contrary in United States v. Maldonado , 356 F.3d 130, 136 (1st Cir. 2004), on which the lead Justices rely. Cf. Doe v. City of San Diego , 198 F. Supp. 3d 1153, 1163 (S.D. Cal. 2016) (acknowledging the validity of an as-applied challenge to a warrantless search of a regulated industry, where the authorizing statute was required to meet the Burger test and the challenger argued that the search exceeded the scope of such authorization).
The authorizing statute in the present case is cast in general terms. It indicates that a state trooper or other qualified officer who is "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. § 4704(a)(2). This contrasts with the mine-safety legislation at issue in Donovan , which the Supreme Court upheld after emphasizing that its detailed specifications were carefully tailored to address the underlying legislative concerns and, moreover, gave mine owners constitutionally adequate notice as to the details of the authorized inspections. See Donovan , 452 U.S. at 603-04, 101 S. Ct. at 2540-41.
I concur with two aspects of Chief Justice Saylor's concurring opinion. As is evident herein, I too do not believe that Maguire waived his present challenge to the systematic nature of the checkpoint at issue. As well, I agree with Chief Justice Saylor that the nature of the search should be evaluated against the Burger /Petroll criteria, and that we should not adopt the analytical framework espoused by the United States Court of Appeals for the First Circuit in United States v. Maldonado , 356 F.3d 130, 136 (1st Cir. 2004), and adopted by the Lead Opinion in this case. See Conc. Op. at 578–79 (Saylor, C.J., concurring); Lead Opinion at 576–77.
However, I disagree with the Chief Justice's determination that the suppression court's ruling on the systematic nature of the checkpoint was a factual conclusion, and, thus, effectively unreviewable by this Court. See Conc. Op. at 580–81. To be sure, any facts found by the suppression court—if supported by the record—bind this Court. However, the question of whether those facts demonstrate that the checkpoint was conducted systematically, a statutory requirement and, at times, a constitutional inquiry, is a question of law, which is within this Court's power to answer. See Siekierda v. Com., Dep't of Transp., Bureau of Driver Licensing , 580 Pa. 259, 860 A.2d 76, 81 (2004).
With that said, I am unconvinced by Appellant's contention that the searches conducted at the checkpoint in this case were unnecessary to further the overarching regulatory scheme. It is not unreasonable for officers conducting a safety inspection of a dump truck to have the driver open the door rather than merely roll down the window. Although documents can be handed to an officer through an open window, the truck's cab may be situated high above the ground, and moreover, the statute authorizes an inspection of both the vehicle and its equipment, see supra note 2, which can potentially include items visible to an inspector through an open driver's-side door. Separately, the placement of the checkpoint between the road and the entrance to the landfill was entirely sensible. Therefore, I would conclude that the search of Appellant's vehicle satisfied the second element of the Burger/Petroll standard.
Finally, I respectfully differ with the lead Justices' conclusion that Appellant has waived his argument that the officers retained too much discretion in deciding which vehicles to stop. See Lead Opinion, at 577. The prohibition on officer discretion is common to both Burger/Petroll and the guidelines set forth in Commonwealth v. Tarbert , 517 Pa. 277, 535 A.2d 1035 (1987), and Commonwealth v. Blouse , 531 Pa. 167, 611 A.2d 1177 (1992). As the lead Justices recite, the fifth criterion of the Tarbert/Blouse guidelines mandates that an administratively pre-fixed, objective method be used so officers at the scene do not exercise "unfettered discretion" in selecting such vehicles, Lead Opinion, at 569–70; likewise, under Burger/Petroll the regulatory scheme must "limit the discretion of the inspecting officers." Id. at 575.
Appellant has argued throughout this litigation that the troopers at the checkpoint were able to exercise undue discretion in determining which trucks to stop, and that, as a result of this circumstance, the warrantless inspections conducted there were not sufficiently "systematic" to comport with prevailing law. Although he forwarded that contention before the suppression court while discussing the Tarbert/Blouse construct rather than the Burger/Petroll standard or Section 4704(a)(2), that court had largely concentrated on the Tarbert/Blouse framework – and ultimately held that it applied. Having prevailed at the suppression level, Appellant was under no obligation to preserve issues before the Superior Court. See 500 James Hance Court v. Pa. Prevailing Wage Appeals Bd. , 613 Pa. 238, 263, 33 A.3d 555, 570 (2011) (citing Commonwealth v. Reed , 605 Pa. 431, 438, 990 A.2d 1158, 1163 (2010) ).
Before this Court, Appellant repeats the identical substantive claim, although he now couches it as a violation of the "systematic" qualifier set forth in the governing statute. Further, the majority has determined that, under Burger/Petroll , the checkpoint must, in fact, be "systematic" in the precise manner Appellant advocates. Under these circumstances, I would resolve the issue advanced by Appellant on its merits rather than relying on a waiver disposition.
Again, however, I ultimately agree with the lead Justices that Appellant is not entitled to relief. Notably, the suppression court rejected Appellant's claim and found as a fact that that the inspection program was conducted in a systematic fashion in that the decision of which trucks to stop was not left "to the unfettered discretion of the officers at the scene." Commonwealth v. Maguire , No. CP-18-CR-000396–2015, slip op . at 8. We must affirm that finding if it is supported by the record. See Commonwealth v. Wallace , 615 Pa. 395, 407-08, 42 A.3d 1040, 1048 (2012).
Here, the finding that the checkpoint was conducted in a systematic manner is, indeed, supported by the record. In particular, Trooper Beaver testified that there were three officers at the checkpoint, and they took turns inspecting trucks on a rotating basis. They operated under a pre-established routine whereby any vehicle entering the landfill would be stopped and inspected by the next available officer. A given truck would only proceed to the landfill uninspected if, at the time it drove in, all three officers were occupied inspecting other trucks. See N.T., Mar. 14, 2016, at 8, 14-15. Thus, there was no evidence at the suppression hearing that the officers were able to exercise any discretion, let alone "unfettered" discretion, in deciding which trucks to inspect. Appellant's claim to the contrary rests on speculation that it would have been possible for them to subvert this scheme if they wished to do so. See Brief for Appellant at 25.
Justice Wecht suggests that this is a question of law and, as such, is not entitled to deference. See Concurring and Dissenting Opinion, at 586 n.2. However, it is clearly a mixed question of fact and law, as the "systematic" qualifier is integrally dependent on the court's factual determination as to how much discretion the officers were able to exercise in deciding which trucks to stop. It may thus be contrasted with an issue of statutory construction, which is a pure question of law as recognized in Siekierda v. PennDOT , 580 Pa. 259, 860 A.2d 76 (2004), on which Justice Wecht relies.
Justice Todd joins this concurring opinion.
CONCURRING AND DISSENTING OPINION
JUSTICE WECHT
Jeffrey Maguire, operating a tri-axle dump truck, was stopped at the entrance to a landfill in Clinton County pursuant to a commercial vehicle checkpoint being conducted by Pennsylvania State Trooper Cory Beaver and other governmental inspectors. In this case, we must resolve the question of whether the warrantless and suspicionless seizure of both Maguire and the truck must be reviewed for constitutionality pursuant to the guidelines established by this Court governing vehicle checkpoints in Commonwealth v. Tarbert , 517 Pa. 277, 535 A.2d 1035 (1987) (plurality) and Commonwealth v. Blouse , 531 Pa. 167, 611 A.2d 1177 (1992), or pursuant to the "closely regulated business" exception to the Fourth Amendment to the United States Constitution, as articulated by the United States Supreme Court in New York v. Burger , 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987), and adopted by this Court in Commonwealth v. Petroll , 558 Pa. 565, 738 A.2d 993 (1999).
As the learned Lead Opinion demonstrates, the conclusion that the latter test must apply to the circumstances at bar is inescapable. In Petroll , we unambiguously held that "trucking is a closely regulated industry." Id. at 1001. Bound to that holding by stare decisis , and absent a present challenge to that legal characterization, we are constrained to apply the Burger /Petroll rubric. Thus, I concur in that aspect of the Majority's opinion. I write separately, however, briefly to address the disconcerting way in which we reached the conclusion that "trucking" is a closely-regulated industry, and the potential confusion that may result going forward in commercial vehicle checkpoint cases.
Further, despite my agreement with the Lead Opinion that the Burger /Petroll test governs in this case, I disagree with the Lead Opinion's ultimate determination that Maguire waived one of his present arguments. See Lead Opinion at 576–77. I would conclude that Maguire adequately preserved his challenge to the systematic nature of the checkpoint to which he was subjected, and I would hold that the manner in which the checkpoint was conducted in this case was unconstitutional.
For these reasons, I join part I of the Lead Opinion. I concur in the result of part II. I respectfully dissent as to parts III and IV, as I would reverse the Superior Court's order.
The protections of the Fourth Amendment guard commercial property, like that owned by private persons, against unreasonable governmental intervention or inspection. Burger , 482 U.S. at 699, 107 S.Ct. 2636 (citation omitted). "An owner or operator of a business thus has an expectation of privacy in commercial property, which society is prepared to consider to be reasonable." Id. (citation omitted). However, a business owner's expectation of privacy in his or her commercial premises is lower than the expectation that one has in their private residence, and is at its lowest when the business at issue falls within a "closely regulated" industry. Id. at 700, 107 S.Ct. 2636. Indeed, certain industries are so closely regulated that "no reasonable expectation of privacy ... could exist for a proprietor over the stock of such an enterprise." Marshall v. Barlow's, Inc. , 436 U.S. 307, 313, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). In such circumstances, law enforcement may perform an "administrative search" of those commercial premises that "does not always require a showing of probable cause." Petroll , 738 A.2d at 1000 (citations omitted).
The process for determining whether a particular business is "closely regulated" necessitates a comprehensive evaluation of the nature of the business at issue, the legislative or regulatory scheme created to oversee the industry, and the history of that oversight. The typical "closely regulated" business is one that "poses a clear and significant risk to the public welfare." City of Los Angeles, Calif. v. Patel , ––– U.S. ––––, 135 S. Ct. 2443, 2454, 192 L.Ed.2d 435 (2015). Because of the inherent risks that these industries create, "[i]n the name of protecting the public's welfare, the government often weaves an intricate web of regulatory scrutiny." Petroll , 738 A.2d at 1000. However, not all heavily regulated businesses constitute "closely regulated" ones for purposes of the Fourth Amendment's protections. Courts only may treat a business as such if the regulatory scheme is "sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes." Burger , 482 U.S. at 705 n.16, 107 S.Ct. 2636 (citation omitted). Finally, traditionally, a business will not be considered "closely regulated" when the scheme for oversight, be it legislative or regulatory, was new or recently created. To the contrary, "closely regulated" businesses classically are those that have had a "long tradition of close government supervision," or those whose governmental regulation has been "deeply rooted in history." Id. at 700, 107 S.Ct. 2636 (citations omitted).
In the nearly fifty years since creating the "closely regulated" business exception to the Fourth Amendment's mandates, the Supreme Court of the United States has characterized only four types of businesses as "closely regulated," i.e. , those industries that "have such a history of government oversight that no reasonable expectation of privacy ... could exist for a proprietor over the stock of such an enterprise." Barlow's, Inc. , 436 U.S. at 313, 98 S.Ct. 1816. Those businesses include: the sale of liquor, Colonnade Catering Corp. v. United States , 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970) ; dealing of firearms, United States v. Biswell , 406 U.S. 311, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972) ; mining, Donovan v. Dewey , 452 U.S. 594, 101 S.Ct. 2534, 69 L.Ed.2d 262 (1981) ; and operating an automobile junkyard, Burger , 482 U.S. 691, 107 S.Ct. 2636, 96 L.Ed.2d 601.
Most recently, the Supreme Court declined to include hotel operations within the list of "closely regulated" industries. Patel , 135 S. Ct. at 2454. The Court noted that "[t]he clear import of [its] cases is that the closely regulated industry ... is the exception." Id. at 2455 (quoting Barlow's, Inc. , 436 U.S. at 313, 98 S.Ct. 1816 ). The Court further cautioned that to "classify hotels as pervasively regulated would permit what has always been a narrow exception to swallow the rule." Patel , 135 S. Ct. at 2455.
As I read these Supreme Court cases, before designating an industry or a particular business as "closely regulated," a court should conduct a careful, historical, and comprehensive examination of the commercial activity at issue to determine whether there exists a deep-rooted, longstanding tradition of governmental intervention that is necessary to protect the public from a clear and substantial risk. This is particularly necessary in light of the magnitude of the consequence of being designated a "closely regulated" business. Once so characterized, there no longer exists an expectation of privacy in the premises (or vehicle) being searched and/or seized, which effectively strips away the protections of the Fourth Amendment.
Notably, the Supreme Court has not considered whether "trucking" is a "closely regulated" industry. This Court has. In Petroll , this Court unequivocally held that "trucking is a closely regulated industry." Petroll , 738 A.2d at 1001. In doing so, however, this Court identified, but did not examine, any of the considerations outlined by the Supreme Court. Aside from citing a list of cases from our Superior Court and from other jurisdictions that have addressed the question, this Court offered little analysis. We noted that, in that case, "[t]he trial court and the Superior Court cite a variety of state and federal statutes and regulations to support their conclusion but primarily rely on a chapter of the Motor Vehicle Code...." Id. at 1001. We then cited two of those provisions, one of which— 75 Pa.C.S. § 4704 —indicates that probable cause is a necessary prerequisite to an inspection, and the other— 75 Pa.C.S. § 6308(b) —is a provision permitting systematic checkpoints of all types of vehicles. We contemplated those provisions during our application of the three-part Burger /Petroll test, but we offered no explanation as to why or how these provisions factored into the criteria established by the Supreme Court for determining whether an industry is "closely regulated."
We did not consider (in any manner, let alone comprehensively) the quantity of regulations applicable to "trucking," nor did we identify or contemplate the nature of any other statutes or regulations in an effort to ascertain whether those provisions, federal or state, amounted to an "intricate web of regulatory scrutiny." Petroll , 738 A.2d at 1000. Similarly, we failed to explore the history of the relationship between "trucking" and the government. Absent such information, one now can only take the Court's word for it that the regulatory and statutory scheme governing "trucking" is so "sufficiently comprehensive and defined, so that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections undertaken for specific purposes." Burger , 482 U.S. at 705 n.16, 107 S.Ct. 2636.
Stated plainly, in Petroll , this Court leapt to a conclusion without following any of the guideposts established by the Supreme Court of the United States. The Petroll Court's pronouncement that "trucking" is a "closely regulated" business, and thus excepted from the general protections of the Fourth Amendment, appears more akin to an assumption reached by piggybacking off of the uncited, unverified, and unidentified work of the lower courts rather than a carefully contemplated legal holding worthy of the consequence attendant to that determination.
To be clear, today's Lead Opinion is in no way at fault for that determination or for applying it in the case sub judice . Bound by stare decisis and lacking a meaningful challenge to Petroll 's "trucking" designation, the Lead Opinion has no choice but to utilize the Burger /Petroll test.
Moreover, it seems to me that, if this Court were to perform the analytical task as developed by the Supreme Court's cases, "trucking" likely would again be deemed to be a "closely regulated" industry. But that is beside the point and the inquiry is best left for another day. What matters here is that this Court's failure to conduct a thorough analysis has created a significant risk of difficulties for courts considering the "closely regulated" business exception in the future when a commercial vehicle is at issue.
For instance, in Petroll , the industry that we contemplated was "trucking." Petroll was driving a tractor-trailer when he rear-ended a vehicle in front of him at a traffic light. Petroll , 738 A.2d at 996. Thus, the designation that "trucking" was a "closely regulated" business naturally encompassed the tractor-trailer. However, because we did not: (1) define the term "trucking;" (2) cite or discuss any "trucking"-specific regulations that compelled our conclusion that "trucking" was "closely regulated"; or (3) identify specifically the harm that any of those regulations sought to prevent, we failed to provide future courts addressing similar businesses with any relevant guidance, which, in light of the enormity of the consequence of being designated a "closely regulated" business, is disconcerting to say the least.
The instant matter is a perfect illustration of my concerns. The Lead Opinion notes that "it is indisputable that the government inspection authorized by Section 4704(a)(2) and which took place in this case was aimed at the trucking business, which is a closely regulated industry." Lead Opinion at 576 (emphasis added). However, because we do not know what makes "trucking" a "closely regulated" business, we also do not know the limits on what activity constitutes "trucking." Maguire was not driving a tractor-trailer, like the driver in Petroll . He was driving a tri-axle dump truck. Is an operator of such a vehicle a "trucker?" Does driving a dump truck from one end of town to the other implicate the same safety considerations as does driving a tractor-trailer across three states on an interstate highway at seventy miles-per-hour? Perhaps what makes "trucking" a "closely regulated" business is a restriction on the number of hours that an operator may be on the road, or the weight and size of the vehicle, or maybe it is something else entirely. Is a dump truck subject to the same regulations and restrictions? Without knowing precisely what supported this Court's determination that "trucking" is a "closely regulated" business, a court is left to speculate as to whether the operation of a different class of commercial vehicle (like a dump truck) also is participating in a "closely regulated" industry.
The potential for confusion, and the concomitant risk of constitutional violations, extends to the many other commercial vehicles traveling on every street, alley, and interstate in Pennsylvania. Cement trucks, construction vehicles, a landscaper's pickup truck, street sweepers, U-Haul trucks, ice cream trucks, and amphibious tour vehicles are commercial vehicles subject to regulation and inspection, and each arguably poses a safety risk to pedestrians and citizen drivers, and, perhaps, may be subject to law enforcement checkpoints. If the protocol authorizing those warrantless and suspicionless seizures is challenged, a court will have to consider—as we do today—whether each of those commercial vehicles operates in a "closely regulated" industry, or whether the seizures should be evaluated under the Tarbert /Blouse guidelines. Unfortunately, neither Petroll nor this case will be of any meaningful assistance in resolving those more challenging inquiries.
Maguire does not challenge the ruling that "trucking" is a "closely regulated" business and he does not argue that the operation of a dump truck is distinct from "trucking." Thus, again, the Lead Opinion is not wrong to review this as if it were a "trucking" case, and we are not presented with an opportunity to revisit Petroll or any of the questions left in the wake of its undeveloped holding. That task must await another day. Therefore, I concur with the Lead Opinion that the Burger /Petroll factors are applicable to this case, despite my concerns outlined above.
Although I agree with the Lead Opinion that the Burger /Petroll criteria govern such police-citizen encounters, I disagree with the manner in which the Lead Opinion ultimately resolves this case. In particular, I respectfully part ways with the Lead Opinion's determination that Maguire waived his argument that the checkpoint utilized in this case was not systematic. Id. at 576–77.
The overarching question presented in this case—whether to apply Tarbert /Blouse or Burger /Petroll to commercial vehicle checkpoints—is one of first impression. Although we deemed "trucking" to be a "closely regulated" business in Petroll , a designation that clearly is material for present purposes, we did not address commercial vehicle checkpoints. Petroll involved a challenge to the constitutionality of a search of a tractor-trailer after a traffic accident. Petroll , 738 A.2d at 996, 998. It simply was not a checkpoint case.
Thus, when Maguire filed his suppression motion in this case, the question of which of the relevant analytical tests applied to commercial vehicle checkpoints was an open question in Pennsylvania. Maguire argued that Tarbert /Blouse applied. He won. The Commonwealth appealed. Maguire was under no obligation to raise any other issues, including any peripheral issues pertaining to the application of the Burger /Petroll criteria, which the Commonwealth (who lost at the suppression stage) argued was the applicable test.
The Superior Court reversed the suppression court, holding that the Burger /Petroll criteria applied to the checkpoint conducted in this case, not the Tarbert /Blouse guidelines. See Commonwealth v. Maguire , 175 A.3d 288, 293-94 (Pa. Super. 2017). The Superior Court then proceeded to apply the Burger /Petroll criteria in conjunction with the statute that authorized the checkpoint: 75 Pa.C.S. § 4704(a)(2) 1 . In discussing the Burger /Petroll criteria, the court held that this statutory provision satisfied the third criterion because the "statute is sufficiently specific to provide a constitutionally adequate substitute to the warrant requirement, i.e. , it advises the operator of a commercial vehicle that the regulatory search is being made pursuant to the law, it has a properly defined scope, and it limits the discretion of the inspecting officers." Maguire , 175 A.3d at 293. The panel continued, "[i]n particular, the statute limits the discretion of the inspecting officers by specifying the objects subject to the systematic inspection program—any vehicle, driver, documents, equipment, and load. It also identifies the purpose of the inspection—to ensure that vehicles meet established regulatory standards." Id. Finally, the Superior Court examined the manner in which the checkpoint was conducted by Trooper Beaver and his fellow inspectors, and concluded that Trooper Beaver's "system for selecting trucks to inspect sufficiently limits the discretion of the inspectors and meets the third element of Burger ." Id. at 294.
The Superior Court undeniably incorporated and applied subsection 4704(a)(2) as part of its execution of its Burger /Petroll analysis. More importantly, in discussing the third criteron of the test, the Superior Court examined the checkpoint to determine whether it was operated in a systematic way so as to satisfy both subsection 4704(a)(2)'s systematic requirement and the Fourth Amendment pursuant to Burger /Petroll . As I view these circumstances, Maguire's present argument that the checkpoint did not satisfy subsection 4704(a)(2) is a fair argument in response to the Superior Court's Burger /Petroll analysis, and is an argument that fairly was encompassed in this Court's grant of allocatur . Moreover, because the argument reasonably arises from the Superior Court's analysis of the Burger /Petroll criteria, the first time that such examination occurred in this case, Maguire was under no obligation to raise the issue previously. Indeed, it is well-settled that, as appellee before the Superior Court, he was not required to raise this issue until now. Commonwealth v. Shaffer , ––– Pa. ––––, 209 A.3d 957, 970-72 (2019) (citation omitted).
Turning to the merits of the issue, I agree with Maguire that the protocol employed by Trooper Beaver in this case was not sufficiently systematic because it did not limit the discretion of the officers effectuating the warrantless and suspicionless seizures of the vehicles approaching the landfill.2 Unlike typical checkpoints, the officers here were not directed to stop every truck, to stop every third truck, or to use some other system that would limit the discretion from the officers performing the seizures. Instead, the officers were directed simply to stop the next truck that approached the landfill whenever that officer became available. If an officer was inspecting another vehicle, filling out paperwork in his or her vehicle, or was just otherwise unavailable, an approaching truck was not stopped.
In my view, this protocol was too broadly defined to eliminate, or at least significantly curtail, the discretion of the officers operating the checkpoint. Having no specific direction as to which trucks to seize, the possibility for manipulation was too strong. The officer's only instruction was to stop the next truck when he or she became "available." The potential for abuse is evident, as one's decision as to when he or she is "available" can differ significantly. Moreover, such an amorphous standard allows for the potential that an officer can delay or extend a particular action, so as to be "unavailable," and seize only those trucks that he or she wants to seize. This opens the door to selection based upon bias or prejudice, precisely the evil sought to be avoided in systematic checkpoints.
To be clear, there is no evidence in the record that Trooper Beaver, or any other inspector, stopped Maguire, or any other truck, based upon bias, prejudice, or any other illicit motive. I have no reason to believe that the officers involved in this checkpoint actually abused the process utilized here. But that is not the point. Actual evidence of impropriety by a law enforcement officer during a checkpoint is not required. A reviewing court is not concerned with the subjective actions of any particular officer. A court must review the established protocol to ensure that it is operated on a systematic basis in order to limit as much as possible the potential for abuse, bias, or prejudice in deciding which vehicles to stop. This is true not only of checkpoints, but of all searches or seizures performed pursuant to the "closely regulated" business exception. See Burger , 482 U.S. at 703, 107 S.Ct. 2636 (establishing that administrative searches of such business "must limit the discretion of the inspecting officers").
For these reasons, I would hold that the checkpoint was not systematic as is required by subsection 4704(a)(2), and, thus, also was unconstitutional because it failed to satisfy the third prong of the Burger /Petroll test. I would vacate the Superior Court's order, and I would remand the case to the suppression court for any further proceedings. Because the Lead Opinion charts a different course, I respectfully dissent.