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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT
                                                           OF
                        v.                            PENNSYLVANIA

    LARRY CRAIG RICHARDSON, JR.,

                             Appellant.            No. 1291 WDA 2016


             Appeal from the Judgment of Sentence, July 19, 2016,
               in the Court of Common Pleas of Allegheny County,
              Criminal Division at No(s): CP-02-CR-0008374-2015.


BEFORE: BOWES, J., OLSON, J., AND KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.                        FILED MARCH 29, 2019

        Larry Craig Richardson, Jr. appeals from a judgment of sentence

following a non-jury trial, where the court of common pleas found him guilty

of drug-trafficking and driving under a suspended license.1         The court

sentenced Richardson to a prison term of five to ten years, followed by five

years’ probation. The police had searched Richardson’s vehicle following a

traffic stop and performed what they considered to be an inventory search.

As our precedents make clear, this search was actually an investigatory

search, conducted without a warrant and thus in violation of the Federal and

Pennsylvania Constitutions. We therefore vacate the judgment of sentence

and suppress the unconstitutionally seized evidence.

        These are the facts:


____________________________________________


1   35 P.S. § 780-113(a)(30) and (16) and 75 Pa.C.S.A. § 1543(b)(1).
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      In 2015, the Pennsylvania Attorney General’s Office and the Ross

Township Police Department were investigating Richardson on suspicion of

drug dealing.   Officers had surveilled Richardson’s residence at least three

times. They were looking for people coming to his apartment to buy drugs or

for Richardson to leave in his vehicle. After a few weeks, they still had no

reliable informant or other source of information sufficient to create probable

cause that Richardson was engaging in illegal drug activity.          See N.T.

Suppression Hearing, 1/21/16, at 72. And so they had no warrant.

      What they did have was Richardson’s driving record. By reviewing state

databases, Officer Jason Moss knew that the Pennsylvania Department of

Transportation had suspended Richardson’s license stemming from a DUI.

      The first surveillance occurred on March 17, 2015. No evidence of drug-

trafficking manifested itself. Instead, Richardson got into his SUV with a trash

bag and drove away.      Officers pursued, but they did not cite him for the

suspended license; and eventually, they lost him.       The police located his

parked SUV across town, but they did not try to cite him there. Three days

later, officers staked out his apartment again. No evidence of drug dealing

appeared.

      On April 3, 2015, they resumed surveillance. Officer Balazs Devenyi sat

in the apartment parking lot, in the back of an unmarked SUV. Officer Moss,

who was also in an unmarked car, waited nearby where the roads out of the

complex intersected with the public streets. At noon, Officer Moss asked Patrol

Officer Mark Sullivan to position himself in the general area, in case they

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needed assistance, so Officer Sullivan joined the surveillance team in a

marked vehicle.

      Three hours passed before Richardson left his apartment and entered

his vehicle. Officer Devenyi radioed Officer Moss and Officer Sullivan to inform

them that Richardson was on the move with some sort of black bag. Even

though the police could have stopped him immediately for driving under

suspension, they waited.

      After Richardson drove approximately half a mile, he approached the

interstate.   Officer Moss directed Officer Sullivan to pull over Richardson.

Officer Sullivan got directly behind Richardson and activated his lights to make

the traffic stop.

      Richardson saw the police officer’s lights in his mirror, but he did not

realize the officer was pulling him over. So he moved onto the berm of the

entrance ramp and stopped. However, a portion of his vehicle remained in

the lane of traffic. Officer Sullivan pulled his patrol car behind Richardson;

Officer Moss arrived soon after.

      Officer Moss asked Richardson to exit the SUV and gave him a traffic

ticket for driving with a suspended license (a summary offense). Next, the

officer decided that the vehicle’s location required that it be removed from the

lane of traffic. Per department policy, Richardson had a 20-minute window to

move the vehicle. The police did not advise Richardson of this policy. Instead,

Richardson asked if his girlfriend could move his SUV. Officer Moss asked if

she was at the apartment complex Richardson had just left. Richardson said

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no. So Officer Moss determined that no one was close enough to move the

vehicle and ordered a tow.

      Officer Moss then conducted what he considered to be an inventory

search of the vehicle. When Officer Ross began his search, he did not have

the department’s standard inventory form with him.               Upon entering

Richardson’s vehicle, the first thing that Officer Moss inventoried was the small

black bag. As he had hoped, Officer Moss found exactly what he was searching

for: 25 bricks of heroin and approximately 9 grams of cocaine. See id. at 71.

      He immediately terminated the inventory search and had the vehicle

towed to the police station. Based on the drugs found in Richardson’s SUV,

the police then obtained warrants to search his apartment and to search the

vehicle more extensively. The police seized additional evidence.

      Richardson moved to suppress all the physical evidence. The trial court

denied his suppression motion, convicted Richardson, and sentenced him as

mentioned above. This appeal followed.

      Richardson raises two issues on appeal. Because it is dispositive, we

only address the first issue:

         1. Did the trial court err in denying Richardson’s
            suppression motion because police conducted the
            search for criminal investigatory, rather than non-
            criminal inventory, purposes?




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See Richardson’s Brief at 5.2

        Richardson argues that the police stopped him as pretext so they could

search for drugs. See Richardson’s Brief at 23-24.       Richardson also notes

that the officers never informed him that he had 20 minutes under police

department policy to find someone else to remove his vehicle to avoid an

inventory search altogether. Id. Lastly, he submits, because Officer Moss

immediately searched his black bag and never properly completed an

inventory form, the officers’ real purpose was not to engage in a caretaking

duty. Rather, their purpose was to complete the drug investigation. Id.

        The Commonwealth perceives no constitutional violation, because the

police officers followed departmental regulations for towing and inventorying

an unlawfully parked vehicle. The Commonwealth argues that “although the

police may very well have suspected the presence of criminal contraband in

Richardson’s vehicle, their suspicion does not refute the fact that the officers

had lawful custody of the vehicle and began to conduct a legitimate inventory

search . . . .” See Commonwealth’s Brief at 29.

        We begin by observing our standard of review:

____________________________________________


2   Richardson’s second appellate issue is:

           2. Did the trial court issue a manifestly excessive and
           unreasonable sentence that failed to properly consider and
           apply all of the relevant sentencing criteria, including the
           protection of the public, the gravity of the offense, and
           Richardson’s character and rehabilitative needs, as required
           under 42 PA.C.S.A. § 9271(b) (Sentencing Generally)?


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         Our standard of review in addressing a challenge to the
         denial of a suppression motion is limited to determining
         whether the suppression court's factual findings are
         supported by the record and whether the legal conclusions
         drawn from those facts are correct. Because the
         Commonwealth prevailed before the suppression court, we
         may consider only the evidence of the Commonwealth and
         so much of the evidence for the defense as remains
         uncontradicted when read in the context of the record as a
         whole. Where the suppression court's factual findings are
         supported by the record, we are bound by these findings
         and may reverse only if the court's legal conclusions are
         erroneous.

Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa. Super. 2016) (citation

omitted).

         However, where the appeal of the determination of the
         suppression court turns on allegations of legal error, the
         suppression court's conclusions of law are not binding on an
         appellate court, whose duty it is to determine if the
         suppression court properly applied the law to the facts.

Commonwealth v. Kemp, 961 A.2d 1247, 1252–1253 (Pa. Super. 2008) (en

banc) (citation omitted).

      The facts before us are not disputed; thus, our review is confined to the

suppression court’s inferences and legal conclusions drawn from those

findings. See Commonwealth v. Germann, 621 A.2d 589, 591 (Pa. Super.

1993) (citation omitted).     Because this issue implicates constitutional

requirements and is a question of law, our standard of review is de novo and

our scope of review is plenary. See Commonwealth v. Shabezz, 166 A.3d

278, 285 (Pa. 2017).




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     Under well-accepted state and federal law, citizens are protected from

unreasonable searches and seizures.

        The Fourth Amendment to the United States Constitution
        and Article 1, Section 8 of the Pennsylvania Constitution,
        protect individuals from unreasonable searches and
        seizures. See U.S. Const. amend. IV; see also Pa. Const.
        art. 1, § 8.

See Commonwealth v. Lagenella, 83 A.3d 94, 102 (Pa. 2013)

     Generally, law enforcement must obtain a warrant prior to conducting a

search; however, there are certain exceptions to the warrant requirement. Id.

(citation omitted). Observing the seminal case of South Dakota v.

Opperman, 428 U.S. 364 (1976), our Supreme Court stated: “Inventory

searches are a well-defined exception to the warrant requirement of the

Fourth Amendment and are a recognized part of our law.”                 See

Commonwealth v. Gatlos, 76 A.3d 44, 54 (Pa. Super. 2013) (quoting

Commonwealth v. Nace, 571 A.2d 1389, 1391 (Pa. 1990)).

     Our Court detailed the extensive jurisprudence on warrantless inventory

searches recently in In Interest of M.W., 194 A.3d 1094 (Pa. Super. August

27, 2018):

        An inventory search is not designed to uncover criminal
        evidence. Rather, its purpose is to safeguard the seized
        items in order to benefit both the police and the defendant.
        We have recognized inventory searches in the two areas of
        automobiles and booking procedures.

        Four goals underlie such searches. First, they protect the
        defendant's property while he is in custody; second, police
        are protected against theft claims when defendants are
        given their property upon release; third, they serve to

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         protect the police from physical harm due to hidden
         weapons; and fourth, when necessary, they ascertain or
         verify the identity of the defendant. Intrusions into
         impounded vehicles or personal effects taken as part of the
         booking process are reasonable where the purpose is to
         identify and protect the seized items.

         As long as the search is pursuant to the caretaking functions
         of the police department, the conduct of the police will not
         be viewed as unreasonable under the Constitution.

In Interest of M.W., 194 A.3d at 1100-1101. (citing Commonwealth v.

Gatlos, 76 A.3d 44, 55–56 (Pa. Super. 2013)); see also Commonwealth v.

Nace, 571 A.2d 1389, 1391 (Pa. 1990) (internal citations omitted).

      Specifically, we utilize a two-factor test to determine whether a

warrantless inventory search is justifiable in the absence of probable cause.

         An inventory search of an automobile is permissible when:

         (1)   The police have lawfully impounded the vehicle; and

         (2)   The police have acted in accordance with a
               reasonable, standard policy of routinely securing and
               inventorying the contents of the impounded vehicle.

See Lagenella, 83 A.3d at 102 (citing South Dakota v. Opperman 428 U.S.

364, 375 (1976)).

      Regarding the second prong, our Supreme Court explained:

         The second inquiry is whether the police have conducted a
         reasonable inventory search. An inventory search is
         reasonable if it is conducted pursuant to reasonable
         standard police procedures and in good faith and not for
         the sole purpose of investigation.

Lagenella, 83 A.3d at 103 (quoting Commonwealth v. Henley, 909 A.2d

352, 359 (Pa. Super. 2006) (en banc)) (citations omitted) (emphasis added).


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       To determine whether the search is for the sole purpose of investigation,

we have explained: “Pennsylvania precedent unanimously agrees that the

most important factor in evaluating [inventory] searches is the motive behind

the search, and that the search is conducted pursuant to the objectives set

forth by the United States Supreme Court in Opperman.” Gatlos, 76 A.3d

at 62. “[M]otive is the sole factor which distinguishes a criminal investigatory

search from a noncriminal inventory search of an automobile.” In Interest

of M.W., 194 A.3d at 1101 (citation omitted).

       We also note that the inventory search exception is one of three distinct

exceptions, which comprise the “community caretaker doctrine.”             See

Commonwealth v. Livingstone, 174 A.3d 609, 626-27 (Pa. 2017).3 Under

this doctrine, in order to invoke the inventory search exception, the police

action must be independent from the detection, investigation, and acquisition

of criminal evidence. Id.

       In the instant case, the suppression court drew erroneous legal

conclusions from the facts. For the reasons we set forth below, we conclude

that the inventory search was not reasonable. The police did not adhere to

standard polices; the search was not conducted in good faith; and the purpose

of the search was to discover evidence for a criminal drug investigation.

Because this type of search requires a warrant, the police violated
____________________________________________


3 “The community care doctrine has been characterized as encompassing
three specific exceptions: the emergency aid exception; [] the inventory
exception; and the public servant exception….” Livingstone, 174 A.3d at
626-27 (citation omitted).

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Richardson’s constitutional rights when they proceeded without one. Thus,

the court erred when it did not suppress the evidence.

      Richardson contends that almost every action the police took in this

search underscored the investigatory motive. Although we may consider only

the Commonwealth’s evidence, we nevertheless agree with Richardson. As a

matter of law, we conclude that the inventory search was not made in good

faith, and its primary purpose was to discover evidence relating to the criminal

narcotics investigation.

      Richardson was the subject of a joint narcotics investigation and had

been under surveillance for three weeks. As the suppression judge quipped,

“I really don’t think the Attorney General was involved to find out if Richardson

was driving with a suspended license.”        See N.T. Suppression Hearing,

1/21/16, at 66. Officer Moss testified that his intentions were twofold: to stop

Richardson for driving with a suspended license and to search for drugs.

         Q:       [W]hen you were notified that he was carrying
                  some sort of bag and entering the car, the real
                  motivation at that point was to stop him for driving
                  under suspension and hopefully find drugs on him
                  at that time, correct?

         A:       Yes.

                                      […]

         Q:       Your goal in stopping him for driving under
                  suspension was, as you just said, hopefully to find
                  him in possession of drugs most likely in that black
                  bag.




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           A:        That was part of the investigation to include the
                     DUI suspended (sic). So yes, it was part of the
                     investigation.

Id. at 71-72.

         The Commonwealth argues that the Officer’s suspicion of drugs does not

negate the legitimacy of the inventory search, because the stop was proper.

After all, Richardson was unlawfully driving under a suspended license. Officer

Moss maintained that the primary purpose of the stop was Richardson’s

suspended license, but he also conceded that the citation was a nice tool to

have in the drug investigation.4

         However, if the primary motivation was to prevent Richardson from

driving under a suspended license, the police could have cited him at some

point during the previous three weeks.

         In fact, on the day in question, the police could have cited him

immediately after he drove out his apartment complex.                 On cross-

examination, Office Moss attempted to explain why he did not do so:




____________________________________________


4   A:   [A]s part of my [drug] investigation, I determined that [Richardson was]
         DUI suspended (sic). So as part of that investigation, our motivation
         was to stop him when he’s leaving because we have a duty to do that
         because he’s DUI suspended. Now if he gets into an accident with
         somebody, he might leave the scene. So yes, it’s nice to have that tool,
         but the motivation of that is the DUI suspended. So he was stopped for
         being DUI suspended.

See N.T. at 69.



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       Q:     You could have stopped [Richardson] right there
              and then for driving under suspension, correct?

       A:     Correct.

       Q:     But you didn’t?

       A:     Correct.

       Q:     You allowed [Richardson] to continue driving down
              Cemetery Lane toward Route 19 so that eventually
              the only place he could be pulled over was on the
              on-ramp going down to 279 south?

       A:     I didn’t pull him over there. We intended to have
              the marked patrol vehicle stop him and that is why
              I didn’t stop him.

       Q:     You had the legal right and authority to pull him
              over as you were positioned in that location,
              correct?

       A:     Yes, I did.

       Q:     If you pulled him over in that location, obviously
              there would have been no need to tow his vehicle
              because he never would have left his residence,
              correct? You could have just given him the citation,
              had his vehicle remain in the private lot, and that
              would have been the end of it?

       A:     No. It would be completely obstructing the whole
              apartment complex.

       Q:     You could have ordered him to turn around, go
              back down where he came from, get out of his car
              and park his car, correct?

       A:     I wouldn’t put a DUI suspended driver back in the
              vehicle. What if he goes down there and wrecks
              his car and we just put a DUI suspended driver
              behind the wheel. I would tow the vehicle.

       Q:     So instead of stopping [Richardson] right there and
              then at the intersection [immediately outside of the
              apartment complex], you let him continue to drive
              along Cemetery Lane putting at risk all those


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                  motorists who are subjected to this DUI suspended
                  driver?

         A:       That is true. However, there was a uniformed
                  officer right there ready to stop him less than
                  probably a quarter mile up the street.

                                 […]

         Q:       Well, was it a quarter of a mile or a half mile?

         A:       I would say a quarter mile to a half mile.



See N.T. Suppression Hearing, at 75-77.

      By waiting until Richardson drove away from his apartment and toward

the interstate, as short of a distance as it may be, Richardson’s citation came

at the most opportune time, and in a particularly convenient place, for the

drug investigation.

      The police pulled Richardson over on an interstate ramp. Had the police

immediately prevented Richardson from leaving his apartment complex, or

had they waited until Richardson could pull over legally, his vehicle might have

only been subject to immobilization. Our Supreme Court recently held that

an immobilized vehicle is not subject to an inventory search because it is not

within the lawful custody of the police. See Lagenella, supra, 83 A.3d at

105-106 (holding that a “warrantless inventory search of a vehicle is

permissible only when the police have lawfully towed and stored, or

impounded the vehicle.”). Because the police waited to cite Richardson, they

ensured that they met the first prong of the inventory search analysis: 1) the

police have lawfully impounded the vehicle. See id. at 102.


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       We also observe that the police did not abide by standard policies.

Officer Moss failed to inform Richardson of the Ross Township Police

Department’s policy to allow unlawful drivers 20 minutes to find a substitute

driver to avoid having their car towed and inventoried.            Richardson had

voluntarily asked Officer Moss if Richardson’s girlfriend could remove his car

from the berm. Officer Moss asked if she was at the apartment.5 See N.T.

Suppression Hearing, at 49. Richardson said no. Without advising Richardson

that he had 20 minutes to find anyone else, Officer Moss decided that

whomever Richardson could possibly call would not be there in time. Officer

Moss then ordered the tow and proceeded with the search.

       The police ignored other aspects of their department policy.             The

purported inventory search began without the standard inventory form.

Officer Moss testified that he often fills out the official form back at the station,

because he will jot down the inventoried items in a notebook. Id. at 89. But,

here, he did not do that either. Only after the fact, and despite the officer

never finishing the inventorying, did Officer Moss fill out a purported inventory

form. Notably, Officer Moss did not list on that form several valuable items in

the vehicle. He also failed to record the presence or absence of preprinted

items listed on the inventory form, like a spare tire, a jack, and a lug wrench.

____________________________________________


5We observe that later in the suppression hearing, Officer Moss disputed his
earlier testimony and stated that he could not recall if his response to
Richardson was whether the girlfriend was at the apartment or whether he
asked Richardson if she was “close by.” See N.T. Suppression Hearing, at 81-
83.

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      As we referenced above, four goals underpin the inventory search

exception: 1) to protect the defendant’s property while he is in custody; 2) to

protect the police against claims of theft; 3) to protect the police from physical

harm due to hidden weapons; and 4) when necessary, to ascertain identity.

      We immediately recognize that the first, second, and fourth goals do not

apply here. Officer Moss had no need to seize and search that bag to protect

Richardson’s property or to protect the department against claims of theft. To

accomplish those goals, Officer Moss could have just given the bag to

Richardson, because Richardson was not in custody. Likewise, the police had

no need to search the black bag to ascertain Richardson’s identity.

      As to the remaining goal – the officers’ self-protection – no testifying

officer articulated with any sort of specificity how searching the contents of

the small bag ensured their physical safety. Officer Moss only discussed the

inventory policy in a general sense:

         A:       That is the policy. You have to inventory the vehicle
                  to protect ourselves and the [tow-truck operator]
                  of potential liability of items of value that are in the
                  car and are potentially stolen either by us or the
                  tower. So we cover ourselves and document
                  everything of value in the vehicle.

                                        […]

         Q:       This inventory policy is to protect the valuable
                  items of the owner of the vehicle that is now being
                  released out of police custody?

         A:       To protect him, to protect us, to protect the [tow-
                  truck operator].

N.T. Suppression Hearing, at 54; 57.

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      An inventory search, by definition, is not designed to uncover criminal

evidence.   But the first and only thing that Officer Moss inventoried in

Richardson’s car was the small, black bag. After all, the presence of the black

bag was what caused the police to mobilize and stop Richardson on this

occasion. They had prior opportunities to stop Richardson from driving with a

suspended license, but they did nothing. The black bag highlights the search’s

investigative motive.

      Compare the instant case to Commonwealth v. Collazo, 654 A.2d

1174, 1177 (Pa. Super. 1995), where we deemed proper an inventory search

conducted in light of a drug investigation:

         In Collazo, officers placed the appellant under arrest for
         possessing a controlled substance with intent to distribute
         after they observed the appellant sell a confidential
         informant sixteen packs of heroin […]. After arresting the
         appellant, the officers sought to impound his vehicle.

         Although the appellant asserted he owned the vehicle, it was
         registered to another individual and the vehicle's VIN
         number was illegible. The officers then searched the
         vehicle's glove compartment for the registration papers of
         the owner and discovered a packet of heroin with the same
         label that appeared on the heroin that the appellant had sold
         the informant.

         On appeal, this Court found the officers had conducted a
         valid inventory search when they opened the vehicle's glove
         compartment:

                                       […]

            [T]he vehicle had been seized by police after appellant's
            arrest for selling heroin to the informant. The motive for
            the subsequent search of the vehicle was solely to
            identify its owner and not to uncover evidence of crime.
            The search, therefore, was within the caretaking function

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            of the police, and, as such, was properly conducted
            without a warrant.

         Collazo, 654 A.2d at 1177.

In Interest of M.W., 194 A.3d at 1101 (discussing Collazo, supra)

(emphasis added).

      In In Interest of M.W., the police stopped an appellant whose vehicle

rolled through a stop sign. The teenaged appellant stated he did not have a

driver’s license, and he did not produce the car’s registration.

         Officer Seymour asserted that he told appellant that he was
         being detained [in the back of the police cruiser] so the
         officers could determine the ownership of the car. […]

         Appellant informed Officer Harris that the vehicle's
         documentation was in the glove compartment of the vehicle.

         Officer  Seymour     subsequently     opened      the   glove
         compartment, in which he discovered a             Ziploc bag
         containing fourteen plastic jars of marijuana.

Id., 194 A.3d at 1096-1097.

      In both cases, we concluded that “the officers' motive for searching the

glove compartment was solely to identify the owner of the vehicle and not to

uncover evidence of a crime. As a result, the officers lawfully conducted a

proper inventory search….” Id., 194 A.3d at 1101 (emphasis added). In these

instances, we concluded that the search was reasonable because the police

operated in good faith, and the purpose of their search was based on one of

the four recognized non-investigatory goals – namely, identification.




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      In the instant case, not only did Officer Moss depart from following

standard procedures, but the motivation to search the black bag cannot be

traced to one of the four goals of an inventory search.

      In the absence of one of the four good-faith rationales, we are even

more inclined to infer that the search was conducted for investigatory reasons.

Consider Commonwealth v. Landamus, 482 A.2d 619 (Pa. Super. 1984).

In Landamus, the police impounded the appellant’s parked car, after the car

– though not the appellant – was identified in a burglary. The police then

conducted an inventory search. They discovered jewelry. We stated:

         We can draw no other conclusion than police had a motive
         to search for evidence when they seized the car. The major
         obstacle to the success of the Commonwealth's
         argument that this was a valid inventory search is
         that the officers applied for a warrant to search the
         vehicle for evidence after they discovered the jewelry
         in the car. This strongly indicates that the motive behind
         their actions was to secure evidence against the Appellant.

Landamus, 482 A.2d at 623 (emphasis added).

      The same events occurred here. Upon discovering drugs in Richardson’s

black bag, the police halted their purported inventory search.            They

immediately obtained warrants to conduct extensive searches of both the

vehicle and Richardson’s residence, which had been under surveillance. As

we inferred in Landamus, these actions strongly indicate the true purpose of

the search was not to inventory the vehicle’s contents but to search for drugs.

      We also draw no other legal conclusion than the police had an

investigatory motive to search for evidence when they conducted their search.

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The inventory search was not independent of the narcotics investigation. As

such, the Commonwealth fails the second prong of the inventory search

analysis: 2) the search was not reasonable. See Lagenella, 83 A.3d at 102.

      Because the automobile search was illegal, the additional evidence

derived from Richardson’s black bag must also be suppressed. See Shabezz,

supra, 166 A.3d at 287 (holding “evidence derived from an illegal automobile

search constitutes fruit of the poisonous tree as a result of the illegal seizure

(unless the taint is removed)”); see also Wong Sun v. United States, 371

U.S. 471 (1963).

      The learned Dissent recognizes the above precedents concerning

inventory searches, but believes we misapply them in light of our Supreme

Court’s recent decision in Commonwealth v. Livingstone, 174 A.3d 609

(Pa. 2017).   We disagree, because we respectfully opine that the Dissent

applies related, but distinct, principles of the public servant exception to its

inventory search analysis.

      In Livingstone, the Supreme Court of Pennsylvania undertook an

extensive review of the public servant exception to the warrant requirement.

The public servant exception, the inventory search exception, and the

emergency aid exception all fall under the same umbrella: the “community

caretaking doctrine.” See id. at 626-627; see also, e.g., In Interest of

M.W., supra, 194 A.3d at 1100-1101 (“As long as the search is pursuant to

the caretaking functions of the police department, the conduct of the police




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will not be viewed as unreasonable under the Constitution.”) (emphasis

added).

     In Livingstone, a state trooper believed that a driver who parked along

an interstate required emergency assistance. He pulled his cruiser in front of

the driver’s car, approached the driver, and discovered that she was glossy-

eyed. He then administered a breathalyzer test and charged her with driving

under the influence. The trooper had no warrant to conduct the search and

seizure. Because the trooper could not articulate specific and objective facts

to suggest that that the motorist required assistance, the Supreme Court

determined that the Commonwealth could not rely upon the public servant

exception to the warrant requirement.

     The Livingstone Court ruled that the applicability of the public servant

exception depends on three essential factors:

          [1)] the officer must point to specific, objective, and
          articulable facts which would reasonably suggest to an
          experienced officer that assistance was needed;

          [2)] the police action must be independent from the
          detection, investigation, and acquisition of criminal
          evidence; and,

          [3)] based on a consideration of the surrounding
          circumstances, the action taken by police must be tailored
          to rendering assistance or mitigating the peril.

Livingstone, 174 A.3d at 637 (emphasis added).

     The Livingstone Court observed – and the Dissent highlights – the

second factor is the common thread sewn through the entire caretaking



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doctrine – not only through public servant exception, but also through the

inventory search exception and emergency aid exception. See id. at 635.

Thus, the second factor in Livingstone must be considered when conducting

an inventory search analysis; we ask: (2) was the police action independent

from the detection, investigation and acquisition of criminal evidence?

      For the Dissent, the question becomes how to define “independent

from.” The Dissent would look to the first Livingstone factor to interpret the

phrase “independent from.” See Dissent at 26.        And so, in the Dissent’s

application, the search is legitimate because: even though the police had an

investigatory interest (Richardson’s black bag likely had evidence pertinent to

the drug investigation), this interest merely coincides with specific,

objective, independent reasons for searching the vehicle (Richardson’s

suspended license necessitated that his car be impounded, which in turn,

necessitated an inventory of the vehicle’s contents). See id. at 31-32.

      We view this as a misapplication, because the first Livingstone factor

is specific to the public servant exception analysis and does not belong in the

inventory search analysis.   No authority has mandated that we apply the

“specific, objective, and independent facts” test to an inventory search.

      We certainly do not believe that Livingstone meant to make the

inventory search analysis mirror the public servant analysis, nor do we believe

that Livingstone silently refined the inventory search jurisprudence.

      To explain: when the Livingstone Court addressed the community

caretaking exception, the Court noted that it already ruled on the inventory

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search exception, but that it had not yet addressed the two other exceptions

in the community caretaking doctrine:

          In Commonwealth v. Lagenella [supra], 623 Pa. 434, 83
          A.3d 94, 103 (2013), this Court acknowledged the
          “community care-taking functions” of police when we
          considered the legality of an inventory search of a vehicle
          lawfully impounded pursuant to standard police policy. We
          have not, however, addressed the public servant or
          the emergency aid exceptions under the community
          caretaking doctrine, although more than half of our sister
          states have done so.

Livingstone, 174 A.3d at 627 (emphasis added).

       The Livingstone Court proceeded to discuss, in great detail, other

facets of the community care taking doctrine thereafter, but it never revisited

its four-year-old inventory search holding in Lagenella.          Moreover, the

Livingstone Court specifically limited its holding to the public servant

exception.6

____________________________________________


6

          [We] first hold that, in order for the public servant
          exception of the community caretaking doctrine to
          apply, police officers must be able to point to specific,
          objective, and articulable facts that would reasonably
          suggest to an experienced officer that a citizen is in need of
          assistance.

                                          ***

          Second, we hold that, in order for the public servant
          exception of the community caretaking doctrine to
          apply, the police caretaking action must be independent
          from the detection, investigation, and acquisition of criminal
          evidence. [T]his is a common requirement to warrantless



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       Neither can we ignore this Court’s recent decision in In Interest of

M.W., supra, 194 A.3d 1094 (Pa. Super. 2018), where we conducted an

inventory search analysis without even mentioning Livingstone. After all, it

is beyond the power of a Superior Court panel to overrule a prior decision of

the Superior Court, except of course, in circumstances where intervening

authority by our Supreme Court calls into question a previous decision of this

Court. See Commonwealth v. Postie, --- A.3d ---, 2018 WL 6580528 (Pa.

Super. December 12, 2018) (en banc) (citing Commonwealth v. Pepe, 897

A.2d 463, 465 (Pa. Super. 2006)), appeal denied, 946 A.2d 686 (Pa. 2008).

       When we apply Livingstone, we must be careful to apply only that

which is applicable to the entire community caretaking doctrine. When doing




____________________________________________


          searches under all three exceptions of the community
          caretaking doctrine[…].

                                          ***

          [I]t is not realistic or wise to expect an officer to ignore the
          nature of his or her role in law enforcement—or its inherent
          dangers—in order for the public servant exception of
          the community caretaking doctrine to apply.

                                          ***

          Finally, we hold that, in order for the public servant
          exception to apply, the level of intrusion must be
          commensurate with the perceived need for assistance....

Livingstone, 174 A.3d at 634–637 (emphasis added).



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so, we conclude that the police overreached in this matter. The Livingstone

Court cautioned:

           When the community caretaking [doctrine] is involved to
           validate a search or seizure, courts must meticulously
           consider the facts and carefully apply the exception in a
           manner that mitigates the risk of abuse.

Livingstone, 174 A.3d at 637 (citation omitted).

      Instantly, when the police stopped and cited Richardson, the inventory

was not independent from the narcotics investigation.

      These officers’ primary concern when they looked into Richardson’s

driving record was to enforce the anti-narcotics statutes. It was their primary

concern when they staked-out his apartment for three weeks. And it was their

primary concern when they ordered his vehicle to be towed and searched his

black bag.     We cannot validate this search merely because Officer Moss

testified that it was his duty to protect motorists from Richardson’s unlawful

driving.   See N.T. Suppression Hearing, at 69.      This testimony does not

salvage the search, which was not conducted in accordance with standard

procedures, nor in good faith.

      Inventory searches of automobiles, by definition, are not part of a

criminal investigation.    Only by separating inventory and investigative

searches can the judiciary ensure that the community caretaker doctrine does

not become a tool for criminal investigators to circumvent the constitutional

rights of individuals. When considering all the facts and circumstances, we

conclude that this search was a part of law enforcement’s drug investigation


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into Richardson. The search fails the second prong of the inventory search

analysis; thus, it was not an inventory search at all. It was an investigative

search, without probable cause and without a search warrant. The subsequent

search of his home and the more extensive search of his vehicle were similarly

unlawful, because they stemmed from the unconstitutional vehicle search. We

reverse the order denying Richardson’s suppression motion, vacate his

judgment of sentence, and remand.

      Judgment of sentence vacated.          Case remanded for proceedings

consistent with this memorandum. Jurisdiction relinquished.

      Judge Bowes concurs in the result.

      Judge Olson files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/2019




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