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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
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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.
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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
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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?
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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.
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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
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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).
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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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