J-A03009-17

                                  2017 PA Super 351



    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT
                                                                OF
                                                           PENNSYLVANIA
                             Appellant

                        v.

    JEFFERY CHARLES MAGUIRE

                             Appellee                   No. 654 MDA 2016


                 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.

DISSENTING OPINION BY LAZARUS, J.:                FILED NOVEMBER 08, 2017

        I respectfully dissent. I find that the commercial vehicle inspection stop

at issue was subject to the Tarbert/Blouse1 guidelines, albeit on different

grounds than the suppression court, and the inspection program here was not

in substantial compliance with those guidelines.         Therefore, the stop of

Maguire’s vehicle was unlawful, and I would affirm the suppression court’s

order.2

        As the majority properly notes, the only evidence the Commonwealth

presented at the suppression hearing was Trooper Beaver’s uncontradicted
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1 Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987) (plurality);
Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992).

2  See Commonwealth v. Williams, 35 A.3d 44, 47 (Pa. Super. 2011) (this
Court can affirm lower court’s decision if there is any basis to support it, even
if we rely on different grounds).
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testimony.   Thus, since no facts are in dispute, the question presented is

purely one of law and our standard of review is de novo. Commonwealth v.

Beaman, 880 A.2d 578, 581 (Pa. 2005); see also Commonwealth v.

Guzman, 44 A.3d 688, 691–92 (Pa. Super. 2012).

     In his motion to suppress, Maguire claimed the systematic checkpoint

did not comply with the guidelines set forth in Commonwealth v. Tarbert,

535 A.2d 1035 (Pa. 1987) (plurality), and adopted by a majority of the

Supreme Court in Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992).

     [T]o be constitutionally acceptable, a checkpoint must meet the
     following five criteria: (1) vehicle stops must be brief and must
     not entail a physical search; (2) there must be sufficient warning
     of the existence of the checkpoint; (3) the decision to conduct a
     checkpoint, as well as the decisions as to time and place for the
     checkpoint, must be subject to prior administrative approval; (4)
     the choice of time and place for the checkpoint must be based on
     local experience as to where and when intoxicated drivers are
     likely to be traveling; and (5) the decision as to which vehicles to
     stop at the checkpoint must be established by administratively
     pre-fixed, objective standards, and must not be left to the
     unfettered discretion of the officers at the scene.

Commonwealth v. Worthy, 957 A.2d 720, 725 (Pa. 2008), citing Blouse,

supra,   and    Tarbert,    supra.    “Substantial   compliance     with    the

Tarbert/Blouse guidelines is all that is necessary to minimize the

intrusiveness of a roadblock seizure to a constitutionally acceptable level.”

Commonwealth v. Yastrop, 768 A.2d 318, 323 (Pa. 2001).               However,

where police do not comply with the guidelines in establishing a checkpoint,

the trial court should suppress evidence derived from the stop, including the



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results of field sobriety and blood alcohol testing. See Commonwealth v.

Blee, 695 A.2d 802, 806 (Pa. Super. 1997).

      The suppression court, relying on this Court’s en banc decision in

Commonwealth v. Garibay, 106 A.3d 136 (Pa. Super. 2014), concluded that

the Tarbert/Blouse guidelines applied to commercial vehicles when setting

up DUI and non-DUI checkpoints. In Garibay, the City of Pittsburgh set up a

checkpoint as part of the Pennsylvania Department of Transportation’s “Click

It or Ticket” program, which was designed to ensure compliance with seatbelt

requirements. When Garibay’s vehicle was stopped at the checkpoint, police

suspected he was under the influence of marijuana due to his failure to

respond, his trance-like state, and “a particularly pungent odor of marijuana

emanating from his person and his vehicle.” Id. at 137. Garibay was arrested

for DUI; a search incident to the arrest yielded a white porcelain pipe in

Garibay’s front jacket pocket.

      Garibay was charged with DUI, possession of drug paraphernalia and

two vehicle–related summary offenses. He filed a motion to suppress, alleging

police did not comply with the Tarbert/Blouse guidelines for checkpoint

stops.   Following a hearing, the court denied the motion to suppress.     On

appeal, this Court vacated the judgment of sentence, holding that the existing

Tarbert/Blouse standards applied to non-DUI checkpoints, and that the

Commonwealth failed to present evidence that the checkpoint complied with

those standards. Id. at 143.




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      Here, the suppression court found that the inspection checkpoint at

issue did not comply with those standards, in particular the fifth criterion that

checkpoint stops must be established by administratively pre-fixed, objective

standards, and must not be left to the unfettered discretion of the officers at

the scene. The suppression court relied on this Court’s decision in Garibay,

stating: “In Garibay, the Superior Court made no distinction or exceptions

for commercial vehicles.”      Suppression Court Opinion, 5/12/16, at 2.

However, contrary to the suppression court’s interpretation, and Maguire’s

argument, that issue was not presented in Garibay.

      Garibay involved a Dodge Caravan and a non-DUI/seatbelt safety

checkpoint, and we held that the Tarbert/Blouse standards applied to non-

DUI checkpoints as well as DUI checkpoints. There was no mention of the

application of the Tarbert/Blouse standards to commercial vehicles.

Garibay, supra; see also In re: J.A.K., 908 A.2d 322 (Pa. Super. 2006)

(non-DUI vehicle checkpoint for seat belt and child seat violations complied

with procedural requirements and was not controlled by arbitrary discretion of

police officers).

      The question, then, is whether there is any reason to find that the

Tarbert/Blouse guidelines would not apply to a commercial vehicle non-DUI

checkpoint.    The Commonwealth argues, and the majority finds, that the

standards do not apply because commercial vehicle inspections fall within the

highly regulated industry exception to the warrant requirement, and, thus,




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commercial vehicle inspections made pursuant to section 4704 are not

governed, or contemplated by, the Tarbert/Blouse guidelines.

       The United States Supreme Court has recognized an exception to the

warrant requirement for administrative inspections in “closely regulated”

businesses.     New York v. Burger, 482 U.S. 691, 693 (1987). There, the

Court defined the characteristics of an administrative search that validly

circumvents the warrant requirement. The Commonwealth correctly asserts,

and the majority correctly finds, that trucking is a closely regulated industry.

See Commonwealth v. Petroll, 738 A.2d 993 (Pa. 1999).3                    Administrative

checkpoint     inspections,     therefore,     are   not   subject   to    the   warrant

requirement.4




____________________________________________


3 As our Supreme Court noted in Petroll, state and federal regulations require
drivers of commercial vehicles to maintain and possess a logbook; the logbook
details various information, including the driver’s daily time and mileage of
travel for one week. See 67 Pa. Code § 229.343; 49 C.F.R. § 395.8. See
also 75 Pa.C.S.A. § 6103(c) (authorizing PennDOT to adopt federal statutes
or regulations relating to vehicles or drivers). The Commonwealth has adopted
the federal rule setting a maximum time allowable for commercial driving.
See 67 Pa. Code § 229.341; see also 49 C.F.R. § 395.3 (establishing driving
time limits).    Petroll, 738 A.2d at 1002. See also Commonwealth v.
Pollock, 606 A.2d 500, 506 (Pa. Super. 1992); Commonwealth v. Berry,
451 A.2d 4, 6–7 (Pa. Super. 1982); 75 Pa.C.S.A. § 4701 et seq.

4 Non-commercial vehicles, like commercial vehicles, are also heavily
regulated.   “Automobiles, unlike homes, are subject to pervasive and
continuing governmental regulation and controls, including periodic inspection
and licensing requirements.” Tarbert, 535 A.2d at 1038, quoting South
Dakota v. Opperman, 428 U.S. 364, 368 (1976).

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      In the context of a pervasively regulated business, a warrantless

inspection is reasonable if three criteria are met:

      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, and
      it must limit the discretion of the inspecting officers.

Petroll, 738 A.2d at 578-79, quoting Burger, 482 U.S. at 702–703 (citations

and quotations omitted) (emphasis added).             See Commonwealth v.

Hudak, 710 A.2d 1213 (Pa. Super. 1998) (discovery of evidence of crimes in

course of enforcing otherwise proper administrative inspection does not

render search illegal or administrative scheme suspect), citing Petroll, supra,

and Burger, supra.

      The Commonwealth argues:

      Trooper Beaver was within his duties and requirements as a
      certified commercial motor vehicle inspector to stop Maguire’s
      commercial vehicle for a safety inspection at the Clinton County
      Landfill on May 20, 2015. Because the initial stop of Maguire’s
      commercial       vehicle     was     a     lawful   administrative
      search/commercial vehicle inspection not designed to investigate
      criminal activity, the closely regulated industry exception to the
      warrant requirement allowed Trooper Beaver to detain Maguire
      and collect evidence related to a suspected DUI after he had
      probable cause to believe Maguire was operating his vehicle under
      the influence of alcohol. In other words, Trooper Beaver did not
      stop Maguire’s commercial vehicle to investigate whether Maguire
      had been drinking and driving, but once he detected alcohol on


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      Maguire’s breath, the closely regulated industry exception allowed
      him to detain Maguire and search and seize relevant evidence.

Commonwealth’s Brief, at 22-23 (emphasis added).

      This argument misses the mark; the Commonwealth’s focus on the

purpose of the stop is beside the point.         During a systematic vehicle

inspection, an officer may detain a driver suspected of DUI and search and

seize relevant evidence.   That presumes, however, that the administrative

stop was lawful. Here, the Commonwealth makes that assumption when in

fact the question of whether the administrative stop was “lawful” is the precise

issue before this Court.

      A commercial vehicle safety inspection must comply with section 4704

of the Vehicle Code, which provides the authority for a warrantless inspection.

Section 4704 states:

      (a)   Authority to inspect.--

                                    ***

         (2) Systematic vehicle inspection programs.-- Any
         Pennsylvania State Police officer or qualified Commonwealth
         employee engaged in a systematic vehicle inspection
         program may inspect any vehicle, driver, documents,
         equipment and load to determine whether they meet
         standards established in department regulations.

75 Pa.C.S.A. § 4704(a)(2) (emphasis added). Pursuant to section 4704(a)(2),

state officials may execute a systematic vehicle inspection program in order

to “remove unsafe vehicles from the roadways before an accident occurs.”

Petroll, 738 A.2d at 1003. This is the same rationale behind section 6308(b)

of the Vehicle Code, which provides for systematic inspection of non-

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commercial vehicles.       See Blouse, supra (compelling interest of state in

protecting its citizens from harm of unsafe vehicles occupying roadways

outweighs privacy interest of individual).

       In Petroll, supra, the Supreme Court concluded that section 4704 must

be read in the context of the rest of the Chapter 47 provisions relating to

inspection of vehicles and that it authorizes inspections to discover ongoing

violations in order to prevent future harm. The Court specifically noted that

the provision does not grant police unlimited discretion to search a driver or

vehicle for evidence of a crime. Subsection 4704(a)(2) authorizes police and

officials “engaged in a systematic inspection program” to inspect vehicles,

drivers, documents, equipment, and load to ascertain compliance with the

Pennsylvania Department of Transportation regulations. 75 Pa.C.S.A. §

4704(a)(2).      The same rationale applies to section 6308(b) of the Vehicle

Code, as amended, 75 Pa.C.S.A. § 6308(b).

       Notably, in 1985, while the Tarbert case was pending in this Court, the

legislature amended the statutes pertaining to both non-commercial and

commercial vehicles.5       See 75 Pa.C.S.A. § 6308(b) (as amended 1985, June
____________________________________________


5 This Court’s decision in Commonwealth v. Tarbert, 502 A.2d 221 (Pa.
Super. 1985), was filed on December 6, 1985. We held, on independent state
constitutional grounds, that, absent probable cause or a reasonable suspicion
that a crime has been or is being committed, stopping all vehicles travelling
on a public highway, pursuant to a police roadblock, violated an individual’s
right to be free from unreasonable search and seizure. Tarbert, 502 A.2d at
224-25. In the 1985 amendments to the Vehicle Code, the General Assembly
added subsection (a)(2), explicitly authorizing a “police officer . . . engaged in



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19, P.L. 26, No. 20, § 10, effective in 60 days) (authorizing “systematic vehicle

inspection programs,” and giving 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 [a] driver’s license

. . .” without the requirement of articulable and reasonable grounds to suspect

a violation of the Code); see also 75 Pa.C.S.A. 4704(a)(2) (as amended 1985,

June 19, P.L. 49, No. 20, § 5, effective in 60 days) (authorizing police and

officials “engaged in a systematic inspection program” to inspect vehicles,

drivers, documents, equipment, and load to ascertain compliance with

Pennsylvania Department of Transportation regulations). These statutory

amendments provided the authority for warrantless systematic inspections or

checkpoints, of both commercial and non-commercial vehicles, and our

Supreme Court’s subsequent 1987 decision in Tarbert, and its 1992 decision

in Blouse, set forth guidelines to assure that the inspection programs provide

a constitutionally adequate substitute for a warrant. See Burger, supra.

       In my opinion, the statutory language, the interests promoted, and the

evils to be addressed by section 4704(2) and section 6308(a)(2) are identical.
____________________________________________


a systematic program of checking vehicles or drivers” to stop a vehicle upon
request or signal to “secure such other information as the officer may
reasonably believe to be necessary to enforce the provisions” of the Motor
Vehicle Code. See 1985, June 19, P.L. 49, No. 20, § 5, effective 60 days.
Prior to 1985, the Vehicle Code did not specifically authorize such systematic
roadblocks. The Supreme Court’s decision in Tarbert, affirming this Court,
acknowledged that the roadblock in effect pre-1985 was not statutorily
authorized, and thus the roadblock stop as to defendant Tarbert was unlawful.
“The illegality arose because the exercise of the police power therein exceeded
the statutory parameters then in force.” Tarbert, 535 A.2d at 1045.

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Both commercial and non-commercial vehicles are heavily regulated, and thus

both fall within an exception to the warrant requirement. I would find, then,

that the Commonwealth’s argument is unpersuasive; the fact that commercial

vehicles fall within the heavily regulated industry exception to the warrant

requirement does not necessarily preclude a finding that the Tarbert/Blouse

guidelines apply, and I see no reason to exempt systematic commercial

vehicle inspections from those standards. Administrative searches without a

warrant are permitted when there is substantial government interest, the

search is necessary to further the regulatory scheme, and the inspection

program provides a constitutionally adequate substitute for a warrant.

Tarbert, supra; Blouse, supra. It is significant to note that the underlying

principles of the Tarbert/Blouse guidelines, and the Burger requirements

for administrative warrantless searches in a closely regulated industry, are

compatible; most critically, both mandate limits on the discretion of inspecting

officers, the key factor missing here.

      In my view, the Tarbert/Blouse guidelines provide a practical

framework for ensuring that the inspection program provides a constitutionally

adequate substitute for a warrant. And, as our Supreme Court has stated in

Tarbert and in Blouse, “[s]ubstantial compliance with the guidelines is all

that is required to reduce the intrusiveness of the search to a constitutionally

acceptable level.” Tarbert, 535 A.2d at 1043; Blouse, 611 A.2d at 1180.

See also Commonwealth v. Worthy, 957 A.2d 720 (Pa. 2008);

Commonwealth v. Yastrop, 768 A.2d 318 (Pa. 2001); Garibay, supra.

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      I also find unconvincing the Commonwealth’s argument that because

the Tarbert/Blouse guidelines preclude a physical search of the vehicle or its

occupants and reference intoxicated drivers that they, therefore, do not apply

to commercial vehicle inspections. The guidelines are easily adapted to non-

DUI checkpoints, as illustrated in Garibay, and to commercial vehicles, as

here. The critical concern is that the inspection be systematic, non-arbitrary,

and not left to the discretion of the inspecting officers. As our Supreme Court

stated in Tarbert, “[s]ubstantial compliance with the guidelines is all that is

required to reduce the intrusiveness of the search to a constitutionally

acceptable level.” Tarbert, 535 A.2d at 1043.

      For these reasons, I would find the Tarbert/Blouse standards

applicable to systematic inspections for commercial vehicles.        Here, the

systematic vehicle inspection program was required to comply with the

provisions of the Vehicle Code, which authorized the inspection for compliance

with its mandates. A lawful administrative search, conducted in accordance

with section 4704 and the Tarbert/Blouse guidelines, would not offend

Article I, Section 8 of the Pennsylvania Constitution, and the fruits of the

search would be admissible.

      I would also find that the record supports the suppression court’s finding

that the inspection program did not comply with Tarbert/Blouse. Here, the

court examined each of the Tarbert/Blouse factors, and it made specific

findings that the Commonwealth offered no evidence or testimony with

respect to three of the five standards.      In particular, the court found the

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Commonwealth did not establish sufficient warning of the existence of the

checkpoint. Additionally, the choice of time and place for the checkpoint must

be based on local experience as to the particular reason for the checkpoint.

See Worthy, supra.       Finally, and of particular concern, Trooper Beaver’s

testimony as to how officers determined which vehicles to stop at the

checkpoint did not support a finding that the procedure followed objective

standards. Instead, the procedure he described allowed for officer discretion.

The procedure permitted each of the officers to perform inspections and, when

available, the officer could inspect the next truck that entered the landfill. In

other words, if all of the officers on the team were occupied with inspections,

one truck, or many, could enter the landfill without inspection. Absent an

objective standard by which the officers stopped the trucks, stops could

feasibly be left to an officer’s “unfettered discretion.” Worthy, 957 A.2d at

725 (discussing Tarbert, supra, and Blouse, supra). I find this is a clear

violation of the Tarbert/Blouse requirements.

      In conclusion, I would find the Tarbert/Blouse standards apply to

commercial vehicle checkpoints, and the record supports the suppression

court’s finding that the inspection here was not in substantial compliance with

those standards. Guzman, supra. Thus, the stop of Maguire’s vehicle was

unlawful. I would affirm the suppression court’s order.




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