J-S46027-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SANDRA ROMAN                               :
                                               :
                       Appellant               :   No. 76 EDA 2019

       Appeal from the Judgment of Sentence Entered November 30, 2018
       In the Court of Common Pleas of Lehigh County Criminal Division at
                         No(s): CP-39-SA-0000282-2017


BEFORE:      PANELLA, P.J., OLSON, J., and COLINS, J.*

DISSENTING MEMORANDUM BY OLSON, J.:                          FILED JUNE 23, 2020

        I respectfully dissent. Unlike my learned colleagues, I believe that the

police, under the pretext of an administrative search pursuant to 75 Pa.C.S.A.

§ 6308, conducted a warrantless criminal search under circumstances that

would not excuse the warrant requirement.                Hence, as suppression was

warranted, I would hold that Appellant, Sandra Roman, is entitled to relief.

        Both the Pennsylvania Constitution and the United States Constitution

express a preference for searches conducted pursuant to a warrant and that

warrantless     searches     survive    constitutional    scrutiny   only   in   limited

circumstances. Our Supreme Court has determined:

        Article I, Section 8 of the Pennsylvania Constitution and the Fourth
        Amendment to the United States Constitution generally prohibit
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S46027-19


     the police from searching a person or his or her property and
     seizing personal items without a search warrant. A search warrant
     indicates that the police have convinced a neutral magistrate upon
     a showing of probable cause, which is a reasonable belief, based
     on the surrounding facts and totality of circumstances, that an
     illegal activity is occurring or evidence of a crime is present. A
     search without a warrant may be proper where an exception
     applies and the police have probable cause to believe a crime has
     been or is being committed. Even absent probable cause, some
     searches without warrants do not violate state or federal
     constitutional privacy rights.

Commonwealth v. Petroll, 738 A.2d 993, 998-999 (Pa. 1999).

     Administrative searches, some of which may be conducted on the

premises of businesses subject to continuing government oversight and

comprehensive regulatory surveillance, constitute an exception to the warrant

requirement. In Petroll, our Supreme Court observed,

     While it is well established that the police must possess probable
     cause to search a business premise when there is suspicion of
     illegal activity, an administrative search does not always require
     a showing of probable cause. An owner of a business may not
     enjoy an expectation of privacy equal to that of a personal
     residence. In the name of protecting the public's welfare, the
     government often weaves an intricate web of regulatory scrutiny.
     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.

                          *           *           *

     Courts should treat a business as closely regulated, if the statutes
     and regulations governing it are 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.


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Id.   at    1000–1001     (internal   citations,   quotations,   and     brackets

omitted). Automobile salvage yards, repair shops, and businesses engaged

in used car sales are closely regulated industries. See id. at 1001, citing New

York v. Burger, 482 U.S. 691 (1987); see also Commonwealth v. Hudak,

710 A.2d 1213 (Pa. Super. 1998).

      Within the context of automotive sales, salvage, and repair enterprises,

police officers may conduct investigations under 75 Pa.C.S.A. § 6308, which

provides, in pertinent part:

      (c) Inspection.--Any police officer or authorized department
      employee may, during business hours or at any other time in
      which work is being conducted or work is being performed, inspect
      any vehicle, or major component part for which records are
      required to be kept under subsection (d), in any garage or repair
      shop or on the premises of any dealer, miscellaneous motor
      vehicle business, salvage motor vehicle auction or pool operator,
      salvor, scrap metal processor, or other public place of business
      which deals in the trade of vehicles or major component parts for
      the purpose of:

           (1) locating stolen vehicles or parts of vehicles or major
           component parts with identification numbers, Federal
           certification labels, anti-theft labels or parts stickers
           removed, altered or falsified; or

           (2) inspecting the records required to be kept under
           subsection (d).

      The owner, operator, representative of the owner or operator of
      the business or other person shall permit any police officer or
      authorized department employee to make investigations under
      this subsection.

      (d) Records.--

           (1) Every salvor, miscellaneous motor vehicle business,
           salvage motor vehicle auction or pool operator, scrap metal
           processor, garage, repair shop and dealer shall keep
           accurate records of the purchase, acquisition, sale and

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       disposition of vehicles as required under sections 1103.1
       (relating to application for certificate of title), 1111 (relating
       to transfer of ownership of vehicle), 1113 (relating to
       transfer to or from manufacturer or dealer), 1114 (relating
       to transfer of vehicle by operation of law), 1119 (relating to
       application for certificate of title by agent), 1161 (relating
       to certificate of salvage required), 1162 (relating to transfer
       to vehicle salvage dealer), 1163 (relating to transfer to
       scrap metal processor) and 1164 (relating to theft vehicles).
       The records shall also include a corresponding customer
       receipt with the vehicle identification number, make, year
       and type of vehicle, from whom the vehicle was purchased
       or acquired, sold to or disposed of, the date, location and
       place purchased, acquired, sold or disposed of and the
       amount paid or other tender exchanged for the purchase,
       acquisition, sale or disposition.

       (2) The records shall also include a photocopy of a
       government-issued form of photo identification from the
       person towing or selling the vehicle, driver's license number
       and location from where the vehicle was towed or sold and
       the business name, address, license number and contact
       number of the towing company.

       (3) The records shall be available on the premises of the
       salvor, miscellaneous motor vehicle business, salvage motor
       vehicle auction or pool operator, scrap metal processor,
       garage, repair shop and dealer and open to inspection by
       any police officer or authorized department employee. The
       records shall be maintained for three years from the date of
       disposition of the vehicle.

       (4) If inspection under subsection (c) reveals stolen
       vehicles, stolen major component parts, vehicles or major
       component parts with identification numbers, Federal
       certification labels, anti-theft labels or parts stickers
       removed, altered or falsified, any police officer or authorized
       department employee may seize those vehicles or vehicle
       parts, records relating to the seized vehicles or vehicle parts
       and the business, including proof of ownership or operation
       of the business, as well as any instrumentalities used to
       facilitate criminal activity.




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75 Pa.C.S.A. § 6308(c)-(d).      However, “[t]he police cannot conduct a

warrantless administrative search to advance a criminal investigation under

the pretext of addressing a specific, compelling governmental interest

advanced by a statutory scheme.” Petroll, 738 A.2d at 1003–1004, citing

Hudak, 710 A.2d at 1217; Commonwealth v. Slaton, 608 A.2d 5, 8 (Pa.

1992).

      I believe that our decision in Hudak and our Supreme Court’s decision

in Slaton are dispositive.   In Hudak,

      [o]n December 1, 1995, Sgt. Dale Provins and Officer Jeffrey Judd
      of the Borough of Jefferson Police Department went to Bob's Auto
      Body in West Elizabeth to inspect records, documents and vehicles
      at that location to determine whether the vehicles were legally on
      the premises and properly owned by [Hudak]. Upon arriving at
      the location, Sgt. Provins approached [Hudak], the owner of Bob's
      Auto Body, and informed him that he was there for the purpose of
      checking vehicle information. Sgt. Provins expressly informed
      [Hudak] that they had received a tip that [Hudak] was dealing in
      “hot” auto parts. At that time, Sgt. Provins was carrying a copy
      of the Vehicle Code and advised appellant that under 75 Pa.C.S.A.
      § 6308(c), [Hudak] was required to allow the officers to inspect
      the premises. [Hudak] permitted the police to inspect Bob's Auto
      Body without a warrant.

Hudak, 710 A.2d at 1215. Upon inspection of all the vehicles at the auto

body shop, the police found a vehicle with a Vehicle Identification Number

(VIN) that “had been removed from another vehicle and had been glued on

top of the original VIN number.”     Id.   The Commonwealth subsequently

charged Hudak with receiving stolen property, removing and falsifying

identification numbers, and dealing in vehicles with falsified numbers. Prior




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to trial, Hudak filed a suppression motion, which the trial court denied. Upon

review, we reversed, finding:

      [T]he record indicate[d] that the officers used their authority
      under § 6308(c) as a pretext to gather evidence of criminal
      activity. From the beginning, the officers stated that their purpose
      for inspecting Bob's Auto Body was to follow up on reports of
      suspected criminal activity occurring there. In fact, Sgt. Provins
      testified that “I was there for the purpose of checking information
      that we received that [Hudak’s] business had been involved in
      dealing hot auto parts.” N.T. 1/13/97 p. 4. Moreover, the record
      [did] not reveal that the inspection of Bob's Auto Body was part
      of the routine enforcement of the regulatory scheme. Accordingly,
      we [found] that 75 Pa.C.S.A. § 6308(c) [was] inapplicable
      because the December 1, 1995 search was not a routine
      inspection, and, therefore, the general Fourth Amendment
      warrant requirements appl[ied]. See Slaton (where officers
      intend to conduct a search for evidence, they must either obtain
      a warrant or assert an exception to the warrant requirement).

Id. at 1217.

      In Hudak, we relied heavily upon our Supreme Court’s prior decision in

Slaton. In Slaton,

      [o]n November 21, 1983, Narcotics Agent, Eugene C. Beard, Jr.,
      went to Lou's Pharmacy to conduct an investigation of a suspect
      by the name of Merriweather, whom the agent believed to be
      forging prescriptions. The agent identified himself, stated his
      purpose, requested the right to inspect the Schedule II records of
      the proprietor, Louis Slaton, and obtained [Slaton’s] permission
      to do so. While conducting this initial investigation, the agent
      “found a lot of forged prescriptions,” none of which related to
      Merriweather, the subject of that investigation. As a result of
      these initial findings the agent began contacting physicians to
      ascertain whether they had in fact issued and signed the
      prescriptions in question.

      Prior to returning to Lou's Pharmacy on December 6, 1983, the
      agent was aware that the prescriptions previously removed from
      Lou's Pharmacy's Schedule II files were forgeries. The focus of
      the investigation had then shifted to Slaton. Yet, neither Agent
      Beard nor Agent Infantino, who conducted the inspections on

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      December 6 and 7, 1983, indicated their suspicions or change of
      focus to [Slaton] until January 16, 1985. On the latter date, the
      agents obtained a search warrant for Lou's Pharmacy, conducted
      a search, and arrested Slaton.

Slaton, 608 A.2d at 6.

      Ultimately, the Slaton Court concluded:

      [T]he narcotics agents' only purpose in searching Slaton's
      pharmacy was to investigate alleged [criminal] activity. This was
      true even when the first search was conducted. The agents never
      claimed to have any administrative purpose but instead, declared
      at the outset that their desire was to gather additional information
      for an ongoing criminal investigation whose subject at that time
      was someone other than Slaton. The search, therefore, was not
      an administrative inspection conducted [] on a regular basis, but
      a discretionary act by officials who were involved in an ongoing
      criminal investigation. Since it was never claimed that the
      searches were administrative, the question of the parameters of
      an administrative search is not relevant here. The traditional
      Fourth Amendment warrant requirements for a valid search,
      therefore, apply in this case.

Id. at 8.

      Here, the trial court found that Section 6308 authorized Trooper Rode

to inspect title documents and records and he did so during normal business

hours as statutorily required. Trial Court Opinion, 2/27/2018, at 20.        The

trial court found Trooper Rode’s testimony at the suppression hearing credible

insofar as he stated that he went to A to Z Auto to investigate a case that

involved the failure to receive title to a motor vehicle, but then performed an

inspection of all of title documents at the facility pursuant to his personal

policy. Id. at 2-3. In addition, the trial court determined that “when all of

the provisions of the PennDot [a]greement are read together, A to Z Auto and

its manager, Appellant, are obligated to maintain records related to title

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J-S46027-19


documents and have such documents available for inspection by the

Pennsylvania State Police.” Id. at 19.      For the reasons that follow, I would

hold that the trial court erred as a matter of law.

      The trial court found that Trooper Rode initially responded to A to Z Auto

to investigate a potential crime after an individual reported that he did not

receive title to a vehicle processed by A to Z Auto. This was a dispositive

assessment. In Hudak, this Court held that where the police responded to

an automotive business to investigate a possible crime, the inspection did not

involve routine enforcement of the regulatory scheme and 75 Pa.C.S.A.

§ 6308(c) did not apply.      See Hudak, supra.        In such circumstances,

traditional, Fourth Amendment warrant requirements must be satisfied. See

Hudak, 710 A.2d at 1215 (where an administrative search is not a routine

inspection, the general Fourth Amendment warrant requirements apply); see

also Slaton, 608 A.2d at 8 (where officers initially intend to search for

evidence of a crime, they must obtain a warrant).

      Our case law makes clear that where an officer or an agent initiates a

search for the purpose of conducting a discretionary investigation into a report

of a specific crime, the entire search is investigative in nature, not

administrative, and traditional Fourth Amendment search and seizure

principles should govern. The Majority creates an unworkable framework in

which the administrative search exception swallows the warrant requirement

when it applies two distinct legal doctrines to the same search and allows


                                      -8-
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officers to switch midstream from discretionary to administrative inspections.

I am not questioning Trooper Rode’s credibility here. Trooper Rode may have

held a genuine belief that he merely followed a discretionary criminal

investigation with what he believed to be an administrative search because it

was more convenient to perform his duties in this manner. Nevertheless, I

would not give his testimony binding legal effect since the initial purpose of

his search (a discretionary criminal investigation) dictated the legal standard

that applied under Hudak and Slaton.

      Much of the deference given to Trooper Rode’s testimony by the trial

court and the Majority in according it dispositive legal effect rests on the idea

that the latter part of the trooper’s search was “unrelated” to his initial

investigation. This is a less than compelling reason to accord Trooper Rode’s

testimony binding legal effect and, in addition, the distinction between

“related” and “unrelated” searches carries no constitutional significance under

our prior cases. In fact, the distinction is not supported by the record.

      During both searches, Trooper Rode looked for irregularities in title

documentation, so the searches were integrally related in this way - the latter

simply being a significant expansion of the former. More specifically, Trooper

Rode testified that he arrived at A to Z Auto to investigate a “complaint”

wherein an unidentified person had not received title to his vehicle and that

“it looked like part of the record was processed at A to Z.” N.T., 9/28/2018,

at 9; id. at 13 (“The complaint was he had not – the person did not yet receive


                                      -9-
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this title, and there [were] issues with how it was being processed.”). As such,

Trooper Rode “wanted to see that specific record.” Id. at 9. He then testified:

       Also, when I’m there, I make a standard policy [] that when –
       because, also, I’m supposed to be doing random audits and
       inspections of places. Also, when I’m there, I inspect the records
       as well of others just because I happen to be at the facility. And
       I can still handle [a] complaint for the person and still get an audit
       done at the same time.

Id. at 9-10. Thereafter, Trooper Rode explained:

       When Ms. Roman arrived, again, I identified myself, who I was. I
       told her I was here initially for the complaint regarding the 2012
       GMC. And then I explained to her that, since I'm here, I just want
       to just take a look at the rest of your records and just to make
       sure that everything is in compliance and that the tag agency is
       doing what they're supposed to be doing.

Id. at 13-14. (“So I asked her to see -- I need to see the titles of all the

vehicles that -- of the cars that she had for sale.”)

       From that testimony, I make the following observations. First, while the

original “complaint” may not have resulted in one of the citations at issue, as

pointed out by the Majority,1 Trooper Rode set out initially to investigate

potential criminal activity related to an individual complaint concerning the

perfection of title to an automobile. As such, the record is clear that Trooper

Rode responded initially to A to Z Auto to investigate a discretionary criminal

matter. Similar to Slaton and Hudak, Trooper Rode’s intent, at the outset,

was to gather additional information regarding possible criminal conduct.


____________________________________________


1   See Majority at *3 n.3.


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When the initial consensual search concluded, however, Trooper Rode

immediately initiated another search based upon his personal policy to

perform administrative searches after conducting a criminal search. Within

the context of the second search, Trooper Rode sought to review title records

for all of the vehicles A to Z Auto held for sale. N.T., 9/28/2018, at 13-14.

Hence, the record shows that the latter search was simply an expanded

version of the initial criminal search, conducted under the pretext of an

administrative review.

       As Slaton and Hudak make clear, it is the purpose of the officer’s initial

search which determines whether the inspection has been conducted for

investigative or administrative purposes. It is undisputed here that Trooper

Rode responded to A to Z to investigate a possible crime. When he completed

the initial phase of his search, he then expanded his inquiry into a general

investigation of all the title records relating to the vehicles A to Z Auto held

for sale under the guise of an administrative search.2 Because Trooper Rode

lacked a warrant to support that search, and since the Commonwealth failed

to demonstrate any other exception to the warrant requirement, I would hold



____________________________________________


2  I disagree with the Majority’s suggestion that Hudak is factually
distinguishable from this case. See Majority at 9. The Majority finds that
“[u]nlike Hudak, this was not an investigation of suspected trafficking in
stolen auto parts.” Id. While it is true that stolen auto parts are not at issue
in this matter, Trooper Rode went to A to Z Auto to investigate a specific
criminal complaint concerning title records and only afterwards expanded his
efforts to conduct a search under the guise of administrative function.

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that Appellant was entitled to suppression.               See Petroll, Hudak, Slaton,

supra.

       I am also unable to agree with the Majority’s conclusion that the

challenged     procedure     withstands        scrutiny    as   a   constitutionally   valid

administrative search. Here, the Majority gives deference to the trial court’s

credibility determination that Trooper Rode “testified that he was engaged in

a permitted routine administrative inspection to insure agent compliance with

Pennsylvania law on title transfers.” Majority, at *9. I believe, however, the

Majority gives this credibility assessment too much weight in making its legal

determination.3 As set forth above, Trooper Rode stated that he made it part

____________________________________________


3  Aside from Trooper Rode’s testimony that he was engaged in a permitted,
routine administrative search, the Commonwealth did not present any
additional supporting evidence. See Commonwealth v. Johnson, 68 A.3d
930, 936 n.3 (Pa. Super. 2013) (“[I]t is the Commonwealth's burden to prove
that the search and seizure is valid.”) There is no evidence that the
Pennsylvania Department of Transportation (PennDot), the regulatory agency
tasked with overseeing compliance with Section 6308, gave Trooper Rode any
guidance or input regarding the manner in which he conducts administrative
searches. Appellant testified that Trooper Rode did not claim his authority
pursuant to the PennDot agreement or Section 6308. N.T., 9/28/2018, at 64-
65. Furthermore, Trooper Rode testified that he did not review the PennDot
agreement before arriving at A to Z Auto. Id. at 22. The PennDot agreement,
however, sets forth administrative sanctions for failure to maintain proper
documents and/or for failing to comply with the Motor Vehicle Code. See
PennDot Agreement, 10/14/2011, at 8-12. Those sanctions include issuing
written warnings, suspending operations temporarily, and/or terminating the
agreement. Id. However, in this case there is no evidence that PennDot took
any subsequent administrative action against Appellant as provided by the
agreement. As such, the Commonwealth failed to show any evidence of
agency involvement whatsoever. Moreover, Trooper Rode issued Appellant
the criminal citations a few hours after the search. N.T., 9/28/2018, at 70.



                                          - 12 -
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of his standard policy to inspect all of the records of others when he happens

to be at a facility investigating a specific matter. Just because he stated that

it was his overall routine, does not make the procedure proper.           In other

words, while Trooper Rode may be truthful in saying he believed he conducted

a routine and permitted administrative search pursuant to his own policy, his

policy is inconsistent with the statutory scheme of Section 6308 which, as

discussed below, must perform the two basic functions of a warrant.

       As our Supreme Court noted in Petroll:

       [A] search without a warrant of a closely regulated business will
       be reasonable if it satisfies the following three criteria:

          First there must be a “substantial” government interest that
          informs the regulatory scheme pursuant to which the
          inspection is made....

          Second, the warrantless inspection must be “necessary to
          further [the] regulatory scheme....”

          Finally, “the statute's inspection program, in terms of the
          certainty and regularity of its application, [must] provid[e]
          a constitutionally adequate substitute for a warrant.” In
          other words, the regulatory statute must perform the two
          basic functions of a warrant: it must advise the owner of the
          commercial premises that the search is being made
          pursuant to the law and has a properly defined scope,

____________________________________________


There was no evidence that he consulted with PennDot or contemplated the
agreement before doing so. If the search were administrative, there were
administrative remedies available to impose. Accordingly, based upon this
record, the search ultimately resulted in only the issuance of criminal citations,
without any further administrative penalty. Because the search bore no indicia
of administrative oversight or input, there was no evidence of any corrective
administrative action taken by PennDot, and Trooper Rode issued only
criminal citations, the Commonwealth failed to prove an administrative search
rather than a criminal investigation.

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         and it must limit the discretion of the inspecting
         officers.

Petroll, 738 A.2d at 1000–1001, citing New York v. Burger, 482 U.S. 691,

702-703 (1987).

      In this case, I would note the following. Trooper Rode’s administrative

search policy does not appear to be the type of randomized and routine search

procedure contemplated by statute. In fact, mere convenience and Trooper

Rode’s criminal investigation priorities dictated the timing and occurrence of

his administrative searches. After conducting a criminal investigative search,

the trooper testified that he always undertakes an administrative search

because he is already on site. Trooper Rode’s personal administrative search

policy of “convenience” is not the sort of regulation-driven, agency-guided

policy that is consistent with the administrative search exception to the

warrant requirement. As I stated above, the Commonwealth introduced no

evidence of agency guidance or input in the effectuation of Trooper Rode’s

administrative search policy. The result here approves an agent’s personal

policy of performing warrantless “administrative” searches immediately after

concluding criminal investigative searches based upon sheer convenience.

Finally, Trooper Rode testified that he asked to see all of the title records at A

to Z Auto immediately and without limitation. Trooper Rode’s actions blurred

the distinction between discretionary criminal searches, which require a

warrant, and routine and randomized administrative searches that do not.




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The search here was simply too broad, undefined, and placed no limits on the

discretionary authority of enforcement officers.

      For all of the aforementioned reasons, I would hold that the

Commonwealth did not meet its burden in establishing a lawful seizure of the

evidence even under the framework of an administrative search.             Since

Trooper Rode did not obtain a warrant and no exception to the warrant

requirement was established, the search was illegal and all of the evidence

seized was subject to suppression.

      Moreover, I would reject the trial court’s reliance upon PennDot’s

agreement with A to Z Auto in determining that the search was authorized or

that Appellant consented to it. “[I]n a closely regulated industry where ‘[l]arge

interests are at stake, and inspection is a crucial part of the regulatory

scheme,’ the validity of the search does not rest upon consent.” Peterson v.

Commonwealth, Pennsylvania State Horse Racing Com'n, 449 A.2d

774, 778 (Pa. Cmwlth. 1982), citing United States v. Biswell, 406 U.S. 311,

315 (1972). “In the context of a regulatory inspection system of business

premises that is carefully limited in time, place, and scope, the legality of the

search depends not on consent but on the authority of a valid statute.”

Biswell, 406 U.S. at 315. Thus, the trial court’s reliance on the PennDot

agreement rather than the statutory language of Section 6308 was erroneous

as a matter of law.




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        Regardless, upon review of the PennDot agreement, there is no

language giving the police unfettered consent to conduct searches of A to Z

Auto.    The agreement permits, in relevant part:

        26. [PennDot] reserves the right to make unannounced visits to
        audit, observe and inspect [Appellant’s] service operations.
        Temporary registration plates and related documents shall be
        available for inspection, with or without notice, by authorized
        Commonwealth employees or designees, including the
        Pennsylvania State Police. Records required by the Department
        to be maintained by [Appellant] in carrying out the duties under
        this [a]greement shall be subject to periodic inspection by
        authorized representatives of the Commonwealth or its
        designated agents under the following conditions:

        (1)   Place – The inspection may be conducted at the issuing
              agent’s established place of business.

        (2)   Time – The inspection may be conducted during regular and
              usual business hours.

        (3)   Scope – The inspection may be limited to examination of the
              records, plates, permit or other products designated by
              [PennDot], inventory which are subject to the record
              keeping requirement of this [a]greement and [PennDot]
              regulations or, based on the initial findings, may be
              expanded to include investigation of violations of the other
              terms of this [a]greement or [PennDot] regulations.

PennDot Agreement, 10/14/2011, at 7, ¶ 26.

        The trial court determined that this agreement “obligated [Appellant] to

maintain records related to title documents and have such documentation

available for inspection by the Pennsylvania State Police.” Trial Court Opinion,

2/27/2018, at 19. I agree with this assessment and note that maintaining

documents and making them available for police inspection during normal

business hours closely tracks the statutory language of Section 6308.


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Additionally,    paragraph     26    of   the   agreement   provides   for   “periodic

inspections,” statutory language used when a business is closely regulated,

“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.”      Petroll, 738 A.2d at 1001. Thus, I agree that Appellant was

obligated to maintain records and have the documentation available for

inspection. However, in order to demonstrate that an administrative search

was undertaken, the Commonwealth was required to show that the inspection

was conducted within the regulatory scheme of Section 6308 and not a mere

pretext stemming from a criminal investigation. Because the Commonwealth

did not meet that burden, as discussed at length above, consent to search

based upon the PennDot agreement is unavailing.4

       Finally, I would reject the trial court’s conclusion that paragraph 26(3)

of the PennDot agreement, as set forth above, permits “an expanded

investigation[.]” Trial Court Opinion, 2/27/2018, at 18. Aside from quoting

the agreement, the trial court has not cited any legal authority, and

independent research has not revealed any, to suggest that an agency could

enter into an agreement with a closely regulated business to garner blanket


____________________________________________


4  Moreover, I reiterate that A to Z Auto’s agreement with PennDot does not
change the criminal purpose of the initial search that subsequently broadened
into a search for all irregularities pertaining to vehicular title.




                                          - 17 -
J-S46027-19


consent for unfettered property searches at any time in the future. In any

event, upon my review of the agreement at issue, Appellant simply did not

consent to every police inspection at any given time.5

       Ultimately, I would conclude that the trial court erred as a matter of law

in denying suppression.6 As such, I respectfully dissent.




____________________________________________


5  To allow agencies to require agreements that give them carte blanche to
search any aspect of closely regulated business records would essentially
eviscerate Section 6308.

Moreover, because the June 19, 2017 search of A to Z Auto constituted a
discretionary criminal investigation carried out without a warrant under the
pretext of an administrative search, any consent to the challenged search
needed to be knowingly and voluntarily given. See Commonwealth v.
Krenzel, 209 A.3d 1024, 1028 (Pa. Super. 2019). No such assessment was
made by the trial court. Instead, the trial court relied upon a document
executed in 2011 (six years before the challenged search) to conclude that
Appellant consented to the June 19, 2017 search. The document, however,
simply memorialized A to Z Auto’s obligation to maintain certain records and
make them available for inspection consistent with the regulatory purposes of
Section 6308. In addition to our precedents that make clear that the context
of administrative inspections of closely regulated businesses and the legality
of a search does not depend on consent, I would note that the 2011 agreement
would not constitute a knowing and voluntary consent to the instant
investigative search.

6 Because I believe that suppression was warranted, I decline to address
Appellant’s other allegations of trial court error.

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