                                  [J-11-2019]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               MIDDLE DISTRICT

   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


 COMMONWEALTH OF PENNSYLVANIA,                :   No. 41 MAP 2018
                                              :
                     Appellee                 :   Appeal from the Order of the Superior
                                              :   Court at No. 654 MDA 2016 dated
                                              :   November 8, 2017, reconsideration
              v.                              :   denied January 18, 2018, Reversing
                                              :   the Order of the Clinton County Court
                                              :   of Common Pleas, Criminal Division,
 JEFFERY CHARLES MAGUIRE,                     :   at No. CP-18-CR-396-2015, dated
                                              :   March 22, 2016.
                     Appellant                :
                                              :   ARGUED: May 15, 2019

      Justice Baer delivers the Opinion of the Court as to Parts I, II, and IV, and
      announces the Judgment of the Court. Justice Baer also delivers a plurality
      opinion as to Part III.

                                       OPINION


JUSTICE BAER                                           DECIDED: August 22, 2019
      In Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987) (plurality), and

Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 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 (1987), and adopted by this Court in Commonwealth v. Petroll, 738 A.2d

993 (Pa. 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.

75 Pa.C.S. § 4704(a)(2).
       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




                                      [J-11-2019] - 2
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.




                                       [J-11-2019] - 3
       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, 957 A.2d 720, 725 (Pa. 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.”


                                      [J-11-2019] - 4
        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, 738 A.2d 993 (Pa. 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




                                      [J-11-2019] - 5
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




                                      [J-11-2019] - 6
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 (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, 178 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.




                                       [J-11-2019] - 7
      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




                                      [J-11-2019] - 8
         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, 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.1         According to the dissent, “[t]hese statutory

1   Most relevant to this appeal, Section 6308 provides:



                                       [J-11-2019] - 9
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.

      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



      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).

                                     [J-11-2019] - 10
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 Tarber/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




                                    [J-11-2019] - 11
programs of commercial vehicles.2 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.

       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




2 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,
175 A.3d 239, 247 (Pa. 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, 159 A.3d 503, 516 (Pa. 2017). Second, “[o]ur scope of review of suppression
rulings includes only the suppression hearing record . . ..” Id.




                                        [J-11-2019] - 12
and seizures.3 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 (1979)).

      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


3It 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.

                                     [J-11-2019] - 13
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




                                      [J-11-2019] - 14
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). 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




                                      [J-11-2019] - 15
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.4 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.

       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.”5 United States v. Maldonado, 356 F.3d 130, 136 (1st

4 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.
5 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 2-3.
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



                                      [J-11-2019] - 16
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.

       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




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.


                                      [J-11-2019] - 17
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.6 See


6In their responsive opinions, Chief Justice Saylor and Justice Wecht disagree with our
conclusion that Appellant waived his statutory-based argument. Concurring Opinion at
4-5 (Saylor, J., concurring); Concurring and Dissenting Opinion at 8-10 (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



                                      [J-11-2019] - 18
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.”).

                                       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.




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.

                                       [J-11-2019] - 19
