                            [J-11-2019] [MO: 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
                                             :   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


                     CONCURRING AND DISSENTING OPINION


JUSTICE WECHT                                          DECIDED: August 22, 2019
      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, 535 A.2d 1035 (Pa. 1987) (plurality) and Commonwealth v. Blouse, 611 A.2d

1177 (Pa. 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 (1987), and adopted by this Court

in Commonwealth v. Petroll, 738 A.2d 993 (Pa. 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 Majority’s ultimate determination that Maguire

waived one of his present arguments. See Maj. Op. at 17. 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 (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. Indeed, certain industries are so closely regulated

that “no reasonable expectation of privacy . . . could exist for a proprietor over the stock




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of such an enterprise.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (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, 135 S. Ct. 2443,

2454 (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 (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 (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




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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. Those businesses include: the sale of liquor, Colonnade Catering

Corp. v. United States, 397 U.S. 72 (1970); dealing of firearms, United States v. Biswell,

406 U.S. 311 (1972); mining, Donovan v. Dewey, 452 U.S. 594 (1981); and operating an

automobile junkyard, Burger, 482 U.S. 691.

       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). 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




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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.

       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




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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)




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and which took place in this case was aimed at the trucking business, which is a closely

regulated industry.” Maj. Op. at 15 (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




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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 Majority’s determination

that Maguire waived his argument that the checkpoint utilized in this case was not

systematic. Id. at 17.

        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




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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



1      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).


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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, ___ A.3d ___, 2019 WL 2509345, at *11 (Pa.

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

2      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 2-3 (Saylor, C.J.,
concurring); Maj. Op. at 16-17.



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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


       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 5. 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, 860 A.2d 76, 81 (Pa. 2004).


                              [J-11-2019] [MO: Baer, J.] - 11
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 (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.

       Justice Donohue joins the concurring and dissenting opinion.




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