                                 [J-11-2019][M.O. - Baer, J.]
                        IN THE SUPREME COURT OF PENNSYLVANIA
                                      MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA,                    :   No. 41 MAP 2018
                                                 :
                        Appellee                 :   Appeal from the Order of the Superior
                                                 :   Court at No. 654 MDA 2016 dated
                                                 :   11/8/17, reconsideration denied
                   v.                            :   1/18/18, reversing the order of the
                                                 :   Clinton County Court of Common Pleas,
                                                 :   Criminal Division, at No. CP-18-CR-
JEFFERY CHARLES MAGUIRE,                         :   396-2015, dated 3/22/2016
                                                 :
                        Appellant                :   ARGUED: May 15, 2019




                                    CONCURRING OPINION


CHIEF JUSTICE SAYLOR                                       DECIDED: August 22, 2019


        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

Burger v. New York, 482 U.S. 691, 107 S. Ct. 2636 (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, slip op. at 16.1 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 (1981)

(rejecting a Fourth Amendment challenge to warrantless searches under the Federal

Mine Safety and Health Act of 1977), on which Burger heavily relied.

       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


1 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.


                             [J-11-2019][M.O. – Baer, J.] - 2
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).2

      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


2 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.


                             [J-11-2019][M.O. – Baer, J.] - 3
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, slip op. at 18. 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, slip op. at 4; likewise, under Burger/Petroll the regulatory

scheme must “limit the discretion of the inspecting officers.” Id. at 14.

       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


                             [J-11-2019][M.O. – Baer, J.] - 4
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.3 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.


3 Justice Wecht suggests that this is a question of law and, as such, is not entitled to
deference. See Concurring and Dissenting Opinion, slip op. at 11 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.


                              [J-11-2019][M.O. – Baer, J.] - 5
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 Todd joins this concurring opinion.




                            [J-11-2019][M.O. – Baer, J.] - 6
