J-A03009-17

                                   2017 PA Super 351


    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :   No. 654 MDA 2016
    JEFFERY CHARLES MAGUIRE

                  Appeal from the Order Entered March 22, 2016
                 In the Court of Common Pleas of Clinton County
              Criminal Division at No(s): CP-18-CR-0000396-2015


BEFORE: LAZARUS, J., STABILE, J. and DUBOW, J.

OPINION BY DUBOW, J.:                                FILED NOVEMBER 08, 2017

       The Commonwealth appeals from the March 22, 2016 Order, entered in

the Clinton County Court of Common Pleas, granting the Motion to Suppress

Evidence filed by Appellee, Jeffrey Maguire (“Maguire”) in which       Maguire

sought to suppress evidence inspectors obtained without a warrant from an

inspection of his commercial vehicle conducted during a systematic vehicle

inspection program.1 Because we find that the Tarbert/Blouse2 guidelines


____________________________________________


1 See Pa.R.A.P. 311(d) (Commonwealth may appeal as of right from Order
that does not end entire case where Commonwealth certifies in notice of
appeal that Order will terminate or substantially handicap prosecution). Here,
the Commonwealth included in its Notice of Appeal a certification that the
March 22, 2016 Order, granting Maguire’s Motion to Suppress, “will terminate
or substantially handicap the prosecution in the above-captioned matter.”
Commonwealth’s Notice of Appeal, 4/20/16.

2 Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987) (plurality);
Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992).
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do not apply to the inspection of the commercial vehicle in this case and the

warrantless inspection meets the requirements of New York v. Burger, 482

U.S. 691 (1987), and its progeny, we reverse.

       In April 2015, the Pennsylvania State Police (“PSP”) and the Department

of Environmental Protection (“DEP”) organized a joint program, pursuant to

75 Pa.C.S. § 4704(a)(2) (“Section 4704(a)(2)”), to inspect commercial

vehicles at the Clinton County Landfill in Wayne Township.3

       On May 20, 2015, PSP Trooper Corey Beaver, a Motor Carrier

Enforcement Officer, and a Motor Carrier Enforcement Supervisor, went to the

landfill to conduct inspections of commercial vehicles at the landfill. See Trial

Court’s Findings of Fact, 3/22/16, at ¶¶ 1-9.

       The inspection officers established a procedure whereby each officer, as

he or she became available, would stop the next truck entering the landfill.

Id. at 10.

       Trooper Beaver was in a marked patrol car when Maguire arrived in a

commercial vehicle, a tri-axle dump truck. Trooper Beaver exited his vehicle

and motioned for Maguire to pull into the lot where the officers were

conducting the inspections. Trooper Beaver asked Maguire for his documents.

While speaking with Maguire, Trooper Beaver smelled the odor of an alcoholic

beverage emanating from his breath.
____________________________________________


3 Section 4704 authorizes regulatory inspections of commercial vehicles,
drivers, documents, equipment, and loads to ensure that their condition
complies with Department of Transportation regulations (“DOT”). See 75
Pa.C.S. § 4704(a)(2).

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       Maguire provided Trooper Beaver with the necessary documents, and

Trooper Beaver conducted a “Level Two” inspection, which, in addition to a

review of the documents, included an inspection of lights, horn, wipers, tires,

wheel condition, and safety equipment. Id. at ¶¶ 15-20.

       After the inspection, Trooper Beaver asked Maguire to exit the vehicle,

which Maguire did. Trooper Beaver asked Maguire if Maguire had been drinking

and advised Maguire that Trooper Beaver detected the odor of alcohol.

       Maguire responded that he “drank a beer” on his way over to the

Landfill. Trooper Beaver observed a cooler on the floor of the truck, in front

of the gearshift, and asked Maguire about the contents. Maguire responded

that it contained water and beer. The cooler contained three 12-ounce cans

of Busch Light beer and a few water bottles. Id. at ¶¶ 21-27.

       Trooper Beaver then conducted field sobriety testing on Maguire.

Maguire failed two of the three tests.           Trooper Beaver then transported

Maguire to the hospital for blood testing. Id. at ¶¶ 29-31; N.T. Suppression

Hearing, 5/13/16, at 12.

       Following this incident, the Commonwealth charged Maguire, a

commercial truck driver, with five counts of Driving Under the Influence and

five counts of Unlawful Activities.4

____________________________________________


4 Specifically, the Commonwealth charged Maguire with one count each of
violating 75 Pa.C.S. §§ 3802(f)(3), 3802(f)(4), 3802(d)(1), 3802(d)(3), and
3802(d)(1)(iii), and five counts of violating 75 Pa.C.S. § 4107(b)(2).




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       Maguire     filed   a    pretrial   Suppression    Motion,    arguing   that   the

Tarbert/Blouse guidelines applied to a commercial vehicle inspection and

since the inspection in this case failed to meet those guidelines, the inspection

of Maguire’s truck was unconstitutional.5

       On March 14, 2016, the trial court conducted a hearing on Maguire’s

Motion to Suppress, following which it granted the motion. The trial court,

relying on this Court’s holding in Commonwealth v. Garibay, 106 A.3d 136

(Pa. Super. 2014), expanded the scope of the Tarbert/Blouse guidelines to

include an inspection of a commercial vehicle. See Trial Ct. Op., 3/22/16, at

6 (unpaginated). The trial court concluded that since the inspection at issue

did not meet the standards set forth in Tarbert/Blouse, the inspection was

unconstitutional     and       suppressed      the   evidence   of   Maguire’s   alcohol

consumption.

       The Commonwealth timely appealed and presents the following issues

for our review:

       1.     Do the Tarbert/Blouse guidelines apply to commercial
              vehicle inspections conducted pursuant to 75 Pa.C.S.[] §
              4704, particularly where commercial vehicle inspections
              are part of a highly regulated industry exception to the
              warrant requirement?


____________________________________________


5 Tarbert, supra, Blouse, supra, and their progeny have articulated five
criteria that the Commonwealth must satisfy in order for a vehicle
checkpoint to meet constitutional muster with respect to the protection of
privacy rights.



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       2.     Did the trial court err because after State Police stopped
              Maguire’s commercial vehicle to conduct a lawful
              commercial vehicle inspection, the State Police had
              probable cause to believe Maguire was operating his
              commercial vehicle under the influence of alcohol because
              an odor or alcohol emanated from Maguire?

Commonwealth’s Brief at 4.

       When we review the grant of a Motion to Suppress, we consider “only

the evidence from the defendant’s witnesses along with the Commonwealth’s

evidence that remains uncontroverted.”           Commonwealth v. Guzman, 44

A.3d 688, 691-92 (Pa. Super. 2013). Our standard of review is restricted to

whether the record supports the suppression court’s factual findings. With

respect to legal conclusions, however, we conduct de novo review. Id.

       Since the only evidence in this case was that of Trooper Beaver and his

testimony was not contradicted, there are no relevant facts in dispute.

Therefore, the issues on appeal are purely legal issues and our standard of

review is de novo. See Commonwealth v. Beaman, 880 A.2d 578, 581 (Pa.

2005); Guzman, supra.

       It is well-settled that the Tarbert/Blouse guidelines apply to

checkpoints established to inspect non-commercial vehicles pursuant to 75

Pa.C.S. § 6308(b).6 See Garibay, supra; In re J.A.K., 908 A.2d 322 (Pa.
____________________________________________


6 Section 6308(b) authorizes “systematic vehicle inspection programs,” and
gives authority to police officers who are “engaged in a systematic program
of checking vehicles or drivers” to “stop a vehicle . . . for the purpose of
checking the vehicle’s registration . . . or [for a] driver’s license . . .” without
the requirement of articulable and reasonable grounds to suspect a violation
of the Motor Vehicle Code. See 75 Pa.C.S. § 6308(b).


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Super. 2006). We now consider whether the Tarbert/Blouse guidelines also

apply to an inspection of a commercial vehicle that is conducted pursuant to

a systematic vehicle inspection program.

       The Commonwealth argues that the trial court erred in expanding the

Tarbert/Blouse guidelines to inspections of commercial vehicles because

commercial vehicle inspections fall within the closely regulated industry

exception to the Fourth Amendment warrant requirement as enumerated in

Burger. Commonwealth’s Brief at 12, 19. We agree.

       The United States Supreme Court in Burger recognized an exception to

the Fourth Amendment warrant requirement for administrative inspections in

“closely regulated” businesses. The Court held that an owner or operator of

a commercial business or vehicle in a closely regulated industry has a

substantially reduced expectation of privacy. Thus, the Fourth Amendment

warrant and probable cause requirements applicable in the context of a

pervasively regulated7 business are lower. See Burger, 482 U.S. at 699-702.

       The Burger Court also concluded that, in the context of a closely

regulated business, warrantless inspections are constitutional if: (1) there is

a “substantial governmental interest inform[ing] the regulatory scheme

pursuant to which the inspection is made”; (2) the inspection is necessary to

advance the regulatory scheme; and (3) the statute’s inspection program is

applied with such certainty and regularity as to provide a “constitutionally
____________________________________________


7 The Burger Court used the terms “closely regulated” and “pervasively
regulated” interchangeably when analyzing this issue.

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adequate substitute for a warrant.” Burger, 482 U.S. at 702-703. The Court

ultimately held that a valid administrative inspection without a warrant that

uncovers evidence of a crime does not violate the Fourth Amendment. Id. at

716.

       The Pennsylvania Supreme Court, in Commonwealth v. Petroll, 738

A.2d 993 (Pa. 1999) addressed the constitutionality of a warrantless search

of a tractor-trailer after the driver of a tractor-trailer crashed into other

vehicles, killing several individuals. The police conducted the search

immediately after the accident and the search was not part of a systematic

vehicle inspection program.

       The Pennsylvania Supreme Court adopted the three-part test that the

U.S. Supreme Court enunciated in Burger for a closely regulated business:

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

       2. The warrantless inspection must be “necessary to further the
          regulatory scheme”; and

       3. The statute’s inspection program, in terms of the certainty and
          regularity of its application, must provide 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.

Petroll, 738 A.2d at 1000-1001, quoting Burger, 482 U.S. at 702-03.




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      The Pennsylvania Supreme Court applied the Burger guidelines to facts

of Petroll. As an initial matter, the Pennsylvania Supreme Court held that

“trucking is a closely regulated industry.” Petroll, 738 A.2d at 1001.

      The Supreme Court then discussed the first element and concluded that,

“there can be no dispute that the Commonwealth has a substantial interest in

regulating the trucking industry for public safety.” Id. at 1002.

      Although the Supreme Court concluded that the Commonwealth failed

to meet the second prong of the Burger test, the Court’s analysis is helpful

in analyzing the facts of this case.     The Supreme Court found that the

warrantless search of the truck in Petroll did not advance the regulatory

scheme of removing unsafe vehicles from the highways in the Commonwealth

because the police conducted the warrantless search immediately after the

accident occurred and, thus, the search could not have prevented the

accident. Id. at 1003. In other words, a warrantless search that the police

conduct after an accident as part of its investigation into an accident does not

further the regulatory scheme to regulate trucks and prevent accidents.

      The Supreme Court also noted that the police seized a logbook, travel

receipt and other documents and likewise the seizure of those items does not

prevent accidents on the highways of the Commonwealth. Id.

      With respect to the third prong of the Burger analysis—that the

inspection program provide a constitutionally adequate substitute for the

warrant requirement—the Petroll Court clarified that “Burger requires that

the statute clearly inform the owner that his business is subject to periodic

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inspections for a specific purpose.”           Id. at 1004.   Specifically, the Petroll

Court noted that the regulatory statute must “reasonably restrict the scope

and frequency of the inspection program to achieve the statutory objective”

and “limit the discretion of inspections to address the specific purpose of the

statutory scheme.” Id.

        In the instant matter, we first hold that the trucking industry is a closely

regulated industry and businesses and individuals engaged in the trucking

industry have a lower expectation of privacy than individual driving non-

commercial vehicles. See Burger, 482 U.S. 702; Petroll, 738 A.2d 1000.

Thus, since these businesses and individuals have a lower expectation of

privacy, the Tarbert/Blouse guidelines do not apply to inspections of

commercial vehicles in the trucking industry.8

        Our analysis now turns to whether the warrantless inspection of

Maguire’s commercial vehicle that was part of a systematic vehicle inspection

program comported with the principles the Pennsylvania Supreme Court

articulated in Petroll, supra.

        Section 4704(a)(2) authorizes an officer of the PSP or other qualified

Commonwealth employee, “engaged in a systematic vehicle inspection

program, to conduct an administrative inspection of a vehicle, person,

documents, equipment, and load to determine whether they meet the

standards established by department regulations.” 75 Pa.C.S. § 4704(a)(2).
____________________________________________


8   Petroll, 738 A.2d at 1001.


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      Applying the rationale set forth in Petroll, we conclude that the statute

pursuant to which inspectors stopped Maguire’s vehicle, Section 4704(a)(2),

easily satisfies the first prong of the Burger test.    The Supreme Court in

Petroll analyzed Section 4704(a)(2) and concluded that it is part of a

statutory scheme that regulates the trucking industry and “advances a

substantial government interest” of ensuring road safety.        This statutory

scheme also furthers the regulatory scheme by ensuring that individuals and

businesses in the trucking industry meet the standards set by the Department

of Transportation.

      We also conclude that the systematic vehicle inspection program set

forth in Section 4704(a)(2) meets the second prong of the Burger test by

advancing the regulatory scheme.        In particular, the systematic vehicle

inspection program advances the government interest by removing unsafe

vehicles from the roadways before accidents occur. Petroll 738 A.2d at 1003.

      We conclude further that Section 4704(a)(2) satisfies the third prong,

as 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 inspecting

officers.

      In 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

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of the inspection—to ensure that vehicles meet established regulatory

standards.

      Thus, we conclude that this statute, 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.

Burger, 482 U.S. at 703; see Petroll, 738 A.2d at 1004.

      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. Trooper Beaver testified that the PSP and the DEP

scheduled the instant inspection at least a month prior to the inspection at the

Clinton County Landfill. He further testified that, as permitted in the statute,

it was only the PSP and DEP administrative inspectors who conducted the

inspections.   He also testified to the limited scope of his inspection.

Specifically, he testified that he conducted a “level two inspection,” which

entailed a walk-around inspection of the truck’s “[l]ights, horn, wipers, the

tires, the condition of the tires, the tires’ inflation, whether there [are] any

flat tires, the wheel condition, the safety inspection[,]” as well as Maguire’s

documents. N.T., 3/14/16, at 10.

      Trooper Beaver also described the process by which the Team selected

the trucks to inspect. Simply, if an inspector was available when the truck

arrived at the landfill, one of the inspectors inspected it. If the inspectors

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were unavailable because they were inspecting other trucks, the truck was

not inspected. We find that this system for selecting trucks to inspect

sufficiently limits the discretion of the inspectors and meets the third element

of Burger.

      For the foregoing reasons, we conclude that the administrative

inspection at issue here satisfied the Burger test. Consequently, the trial

court erred in suppressing the evidence obtained as a result of the warrantless

administrative inspection.   Burger, 482 U.S. at 716 (holding that a valid

administrative search without a warrant that uncovers evidence of a crime

does not violate the Fourth Amendment.).

      In its second issue on appeal, the Commonwealth asserts that, following

the lawful warrantless inspection, the odor of alcohol on Maguire gave Trooper

Beaver probable cause to believe Maguire was operating his commercial

vehicle under the influence of alcohol.        Commonwealth’s Brief at 23.

Therefore, the Commonwealth argues, the search and seizure of evidence

from Maguire’s truck, the responses to brief questions posed to Maguire, and

the results of Maguire’s field sobriety test are admissible.   Id. at 24.   We

agree.

      “Probable cause exists where [a police] officer has knowledge of

sufficient facts and circumstances to warrant a prudent person to believe that

[a] driver has been driving under the influence of alcohol or a controlled

substance.” Commonwealth v. Hilliar, 943 A.2d 984, 994 (Pa. Super. 2008

(citation omitted).   “[A] police officer may utilize both his experience and

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personal observations to render an opinion as to whether a person is

intoxicated.”   Commonwealth v. Williams, 941 A.2d 14, 27 (Pa. Super.

2008) (en banc). Probable cause justifying a warrantless arrest for DUI is

determined by the “totality of the circumstances.” Commonwealth v.

Williams, 941 A.2d 14, 27 (Pa. Super. 2008) (citations omitted).

        Trooper Beaver testified that, in initiating the inspection of Maguire’s

truck, he asked Maguire for his documents. While speaking with Maguire,

Trooper Beaver smelled the odor of an alcoholic beverage emanating from his

breath. After the inspection of the vehicle, Trooper Beaver asked Maguire to

exit the vehicle, asked him if he had been drinking, and advised him that he

had detected the odor of alcohol. Maguire responded that he “drank a beer”

on his way over to the Landfill. Trooper Beaver observed a cooler on the floor

of the truck, in front of the gearshift, and asked Maguire about its contents.

Maguire responded that it contained water and beer. The cooler contained

three 12-ounce cans of Busch Light beer and a few water bottles. Trooper

Beaver then administered three field sobriety tests; Maguire failed two of

them.

        In light of the undisputed testimony, we conclude that the odor of

alcohol on Maguire, coupled with his subsequent admission that he had been

drinking beer and Maguire’s inability to pass all three sobriety tests, provided

Trooper Beaver with probable cause to believe that Maguire was operating his

commercial vehicle under the influence of alcohol.

        Order reversed.

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Judge Stabile joins the Opinion.

Judge Lazarus files a Dissenting Opinion.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/8/2017




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