Com. v. Richardson, L.

J-A02016-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
LARRY CRAIG RICHARDSON, JR. :
: No. 1291 WDA 2016
Appellant

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.

DISSENTING MEMORANDUM BY OLSON, J.: FILED: March 29, 2019

I respectfully dissent from the learned majority. Although I would

vacate Appellant’s judgment of sentence and remand for resentencing, I would

affirm Appellant’s convictions.

On appeal, Appellant primarily contends that the trial court erred when

it denied his motion to suppress. Because the Commonwealth prevailed at

the suppression hearing, we “consider only the Commonwealth’s evidence and

so much of the evidence for the defense as remains uncontradicted when read

in the context of the record as a whole.” Commonwealth v. Russo, 934

A.2d 1199, 1203 (Pa. 2007) (quotations and citations omitted). Further, as

to this issue, “the record” refers to “the evidentiary record that was created

at the suppression hearing.” Commonwealth v. Cruz, 166 A.3d 1249, 1254

(Pa. Super. 2017); In re L.J., 79 A.3d 1073 (Pa. 2013). Viewed in this

manner, the evidence is as follows.
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On the afternoon of April 3, 2015, officers from the Ross Township Police

Department were surveilling Appellant’s residence at 167 North South Drive

in Ross Township. N.T. Suppression Hearing, 1/21/16, at 5-7. Appellant’s

residence was located in an apartment complex known as “the Cascades,”

which is entered from a road named Cemetery Lane. Id. at 5, 23, and 73-74.

The officers were conducting their surveillance because they believed

Appellant was selling narcotics. Id. at 5-7 and 42. The officers did not

possess a warrant to search Appellant’s property or for Appellant’s arrest;

however, earlier in the day, the officers confirmed that Appellant’s driver’s

license was suspended, as Appellant had been convicted of driving under the

influence (“DUI”). Id. at 5-6, 43, and 71-72.1

At approximately 2:00 p.m. that day, Police Officer Balazas Devenyi

watched Appellant leave his apartment holding a black cloth bag, get into his

vehicle alone, and drive away. Id. at 6. Officer Devenyi “relayed [this]

information [to] the other officers on the detail,” which included Police Officer

Mark Sullivan and Detective Jason Moss. Id. at 8 and 12.

At the time, Officer Sullivan was in uniform and driving a marked police

car on Cemetery Lane. Id. at 16. Officer Sullivan testified that, at

approximately 2:00 p.m., he received a radio call from Detective Moss,
____________________________________________

1Ross Township Police Detective Jason Moss testified that, at 11:03 a.m. on
April 3, 2015, he received confirmation that Appellant had a suspended
driver’s license. N.T. Suppression Hearing, 1/21/16, at 43. However,
Detective Moss testified that he “knew back on March 17 that [Appellant]
wasn’t permitted to legally drive.” Id. at 70.

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declaring “that there was a gentleman driving a . . . silver Range Rover . . .

with a suspended [license]” and that the vehicle was “driving up Cemetery

Lane.” Id. at 16-17. Officer Sullivan informed Detective Moss that he would

attempt to stop the vehicle. Id. at 17-18.

Officer Sullivan observed Appellant’s vehicle a “[c]ouple minutes” later.

As Officer Sullivan testified:

I travel up Cemetery Lane and we were stopped at the red
light where it intersects with Perry Highway, and a couple
cars ahead of me I observe a Range Rover. As we proceed
through the red light, the other cars in front of us turned off.
I was directly behind the Range Rover. I observed the license
as [Detective] Moss had informed me over the radio. . . .
[M]aybe 15 seconds after we started moving[,] I initiated a
traffic stop. . . . I turned my lights and sirens on. At that
point[,] the Range Rover turned left onto the ramp [leading
down to Interstate 279] and then pulled over to the side[,
coming to a rest on the berm of the Interstate 279 on-ramp].

Id. at 18 and 20.

As Officer Sullivan testified, Appellant stopped his vehicle “most of the

way off the road out of the lane of travel on the ramp down to [Interstate]

279. His car was two-thirds off the lane of travel onto the berm of the road.”

Id. at 21. However, Appellant’s vehicle was “still parked in the lane of travel”

and, as Detective Moss testified, Appellant’s vehicle posed “a safety hazard to

other motorists who [were] operating their vehicle on this roadway.” Id. at

21 and 48.

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When the vehicles came to a stop, Detective Moss arrived on scene in a

separate, unmarked vehicle and parked behind Officer Sullivan’s patrol car.2

Id. at 46. Officer Sullivan and Detective Moss then approached Appellant’s

vehicle. Id. at 21. As Detective Moss testified:

I asked [Appellant] if he had a good license. He said that he
did. I obtained his license. I informed him he was DUI
suspended and I asked him to step from the vehicle. . . .
[After Appellant stepped out of the vehicle,] I confirmed that
his license was suspended for DUI and [told him] we would
need to tow his vehicle.

Id. at 48-49.

Detective Moss testified that he did not (and could not) arrest Appellant

for driving with a suspended license.3 Id. at 102-103. Rather, Detective Moss

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2Detective Moss testified that he did not stop Appellant’s vehicle because he
was driving an unmarked police car and he wished for “the marked police
vehicle [to] stop” Appellant. N.T. Suppression Hearing, 1/21/16, at 76 and
108 (Detective Moss testified that it is his “preference to have a marked patrol
vehicle [] conduct a traffic stop”).

3 Appellant’s license was suspended because he was convicted of DUI.
Section 1543(b)(1) of the Vehicle Code declares that it is a summary offense
to “drive[] a motor vehicle on a highway . . . of this Commonwealth at a time
when the person’s operating privilege is suspended or revoked . . . because
of a violation of . . . [75 Pa.C.S.A. §] 3802” (related to driving under the
influence of alcohol or controlled substances). 75 Pa.C.S.A. § 1543(b)(1).
Section 6304 of the Vehicle Code, entitled “[a]uthority to arrest without
warrant,” declares:

(a) Pennsylvania State Police.--A member of the
Pennsylvania State Police who is in uniform may arrest
without a warrant any person who violates any provision of
[the Vehicle Code] in the presence of the police officer
making the arrest.

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testified that he intended to issue Appellant a citation for the infraction and

then, “if it was legally possible,” tow the vehicle. Id. Further, while Detective

Moss testified that the police stopped Appellant because he was driving with

a suspended license, Detective Moss testified that the police also “hope[d to]

find drugs on him at that time.” Id. at 71.

As Detective Moss testified on direct examination, after being informed

that the police were going to tow his vehicle: “[Appellant] asked if somebody

could come and move the vehicle. I asked if they were at Cemetery Lane. He

indicated they were not. So I deemed that the person wouldn’t be there within

a reasonable amount of time.” Id. at 48-49. Detective Moss immediately

clarified that, when he asked Appellant whether “they were at Cemetery
____________________________________________

(b) Other police officers.--Any police officer who is in
uniform may arrest without a warrant any nonresident who
violates any provision of [the Vehicle Code] in the presence
of the police officer in making the arrest.

(c) Other powers preserved.--The powers of arrest
conferred by this section are in addition to any other powers
of arrest conferred by law.

75 Pa.C.S.A. § 6304. Officers from the Ross Township Police Department
effected the stop of Appellant’s vehicle. Moreover, the evidence is
uncontradicted that Appellant was a resident of Pennsylvania and that he lived
at 167 North South Drive, in Ross Township. See, e.g., N.T. Suppression
Hearing, 1/21/16, at 6. Therefore, Detective Moss was correct to declare that
he could not arrest Appellant for violating Section 1543(b)(1) of the Vehicle
Code and that the proper procedure was to merely issue Appellant a citation
for the violation. Id. at 103 (Detective Moss testified: “We can’t arrest
[Appellant] for [driving with a suspended license]. He’s cited and pulled
over”).

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Lane,” Detective Moss was asking Appellant whether “there would be someone

available at [Appellant’s] residence to move the vehicle.” Id. at 50. When

Appellant answered “no,” Detective Moss “didn’t pursue it any further . . .

[b]ecause [Detective Moss] deemed that nobody was in close proximity to

move that vehicle.” Id.

However, during cross-examination, Detective Moss partially altered his

testimony on this issue. Specifically, Detective Moss testified that, after he

informed Appellant that the police were going to tow the vehicle, Appellant

said “[c]an my girl or somebody come get it?” Id. at 86. Detective Moss

testified that, in response, he asked Appellant “[a]re they close?;” when

Appellant replied “no,” Detective Moss ended the conversation. Id. at 85-86.

During his testimony, Detective Moss acknowledged the Ross Township

Vehicle Tow Policy and Traffic Enforcement Policy. In fact, Detective Moss

testified that he was attempting to follow the policies during his interaction

with Appellant. Id. at 52. In relevant part, the policies declare:

TITLE III OPERATIONS:
Chapter 9 Vehicle Tow Policy

POLICY:

Incidents often require officers to order that vehicles be
towed from the scene and stored by contract towers. The
reasons and circumstances of these tows are many and
varied. Often times, these tows are ordered against the
wishes of the vehicle driver or owner.

This policy is intended to regulate the circumstances
under which a vehicle is towed at the direction of the
department, the procedures for requesting tows under

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various conditions, and guidelines to be followed for placing
holds and conducting inventories.

PROCEDURE:

901 Reason to Tow

...

F) Traffic Violations

(1) Vehicles may be removed from the scene and
stored by contract tower following enforcement action
pursuant to the criteria set forth in Title III Chapter
14 Traffic Enforcement.

...

904 Inventory of Towed Vehicles

A) Inventories Required

(1) All vehicles towed at the direction of department’s
officers shall be inventoried.

(2) Inventories are the responsibility of the officer
requesting, or ordering, the vehicle to be towed. He
may delegate this responsibility to another officer.

B) Method of Inventory

(1) Officers shall inventory the contents of all
occupant and cargo spaces that are accessible.

(2) In performing inventory searches, no locked or
sealed container shall be forced open.

...

(4) Items of significant monetary value shall warrant
a more detailed description including, but not limited
to, make, model, size, serial numbers, and condition.

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(5) Inventory shall include a description of the interior
and exterior of the vehicle with particular notation of
any visible damage.

C) Inventory Report

(1) Results of inventory shall be documented on the
department’s Inventory Report form.

(2) Any articles removed from the vehicle after the
vehicle has come under the control of the department
shall be noted on the Inventory Report, including
whom the article was released to. . . .

...

(4) All completed reports shall be submitted to the
Records Division within 24 hours. Officers may copy
the completed report for inclusion in case or
investigative files.

...

Chapter 14 Traffic Enforcement

...

1402 Enforcement Options

F) Disposition of Vehicles

(1) If, as a result of enforcement action, the officer[]
finds that a driver is not legally permitted to drive a
vehicle on a highway, the officer may:

(a) Permit the driver to arrange for another person
to drive the vehicle. RESTRICTION: The maximum
time allotted for removal of a vehicle on the
roadway by another person shall be 20 minutes.

...

(c) If the vehicle is not on the roadway, the driver
may be permitted to arrange to have the vehicle

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towed from the location. RESTRICTION: The
maximum time allotted for removal by private
tower shall be 20 minutes.

...

(e) If the vehicle is on the roadway, and driver is
unable to comply with (a), the vehicle shall be
removed at the officer’s direction by contract
tower.

Ross Township Vehicle Tow Policy and Traffic Enforcement Policy, at 1-20.

Detective Moss testified that, pursuant to Section 1402(F)(1)(a) of the

Ross Township Traffic Enforcement Policy, “in a situation where a vehicle must

be towed because the operator doesn’t have a license,” “we would always”

ask the operator whether there was “anyone who was able to come get the

car within 20 minutes.” N.T. Suppression Hearing, 1/21/16, at 86. Detective

Moss testified that he did not specifically ask Appellant “[i]s there anybody

who can get here in 20 minutes?” Id. at 85-86. However, Detective Moss

testified that, in this case, he did not need to ask the question because

Appellant had already confirmed that there was no one “close” who could come

get the car – and, Detective Moss testified, he deemed this answer to mean

that there was no one who could pick up Appellant’s vehicle “within that

20-minute time frame.” Id.

As Detective Moss testified, pursuant to policy, as soon as the police

determine that a vehicle is going to be towed, the police are required to

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perform an inventory search of the entire vehicle before the vehicle is towed.4

Id. at 90; see also Ross Township Vehicle Tow Policy at § 904(A) and (B).

He testified:

That is the policy. You have to inventory the vehicle to
protect ourselves and the tower of potential liability of items
of value 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. . . . [T]he parameters of
the inventory . . . excludes any locked container. But other
than that, it spells out that you are to inventory the entire
vehicle.

N.T. Suppression Hearing, 1/21/16, at 54.

Detective Moss testified that it is his standard procedure to inventory

the vehicle by, first, either memorizing the contents of the vehicle or “writ[ing

the contents] in [his] notebook” prior to the tow; Detective Moss testified that

he then completes a standard inventory form “when [he] get[s] back to the

station.” Id. at 89.

Detective Moss testified that, after he determined that Appellant’s

vehicle was to be towed, he began the inventory search. Id. at 87. As

Detective Moss testified, “in conducting the inventory search, the first thing

that [he] did was go into [Appellant’s] car and take the black bag” that the

police saw Appellant carry from his residence into his car. Id. Detective Moss

____________________________________________

4In accordance with Ross Township Vehicle Tow Policy Section 904, Detective
Moss testified that he is required to “inventory the entire vehicle[,] . . .
exclud[ing] any locked container.” N.T. Suppression Hearing, 1/21/16, at 54.
Appellant’s black cloth bag was closed by a drawstring and was not locked.
Id. at 55.

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testified that he chose to inventory the black bag first because “[t]o me it was

the first logical thing to look for.” Id. at 87. He testified: “I entered the

vehicle and on his passenger side seat was a black drawstring bag. I

manipulated that bag. When I looked in it, I saw several bricks of heroin.”

Id. at 55. At that point, Detective Moss “stopped the inventory . . . [so that

he could] obtain a search warrant and search the rest of the vehicle for further

narcotics” and arrested Appellant. Id. at 56.

The vehicle was towed to the police station and a search warrant was

later issued for Appellant’s vehicle and residence. Id. at 58. Appellant’s

vehicle was later “searched pursuant to the search warrant.” Id. at 60. In

total, the police discovered: approximately 1,250 stamp bags of heroin and

nine-and-a-half grams of crack cocaine in the black drawstring bag; $1,262.00

on Appellant’s person; and, $18,212.00 at Appellant’s residence. Id. at 62-

63.

The Commonwealth charged Appellant with two counts of possession of

a controlled substance with the intent to deliver (hereinafter “PWID”), two

counts of possession of a controlled substance, and one count of driving while

operating privilege is suspended.5 Prior to trial, Appellant filed a motion to

suppress the evidence against him. Appellant claimed that all of the evidence

against him must be suppressed, as the evidence was the product or fruit of

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5 35 P.S. § 780-113(a)(30) and (16) and 75 Pa.C.S.A. § 1543(b)(1),
respectively.

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an unconstitutional impoundment and search of his vehicle. Appellant’s

Suppression Motion, 9/23/15, at 1-6. After hearing the above-summarized

evidence, the trial court denied Appellant’s motion to suppress. Within its

later-filed opinion, the trial court declared:

The record clearly shows that [Appellant] was driving a
vehicle when his driver’s license was suspended. Officer
Sullivan conducted a valid traffic stop to cite [Appellant] for
violating the vehicle code. Consistent with departmental
policy, [Appellant] was provided with an opportunity to have
a local associate retrieve his vehicle. When [Appellant]
advised the officers that nobody was available to retrieve the
vehicle, [Detective] Moss sought to have the vehicle towed
as it was occupying the side of the road on the entry lane to
a busy interstate highway. [Detective] Moss dutifully took all
necessary steps to remove a safety hazard from the roadway.
[The trial court] believes that [Detective] Moss’s conduct was
consistent with departmental policy. Moreover, pursuant to
this same policy, [Detective] Moss was required to conduct
an inventory search to protect [Appellant’s] property as well
as protect himself and others acting on behalf of the
government from any risks associated with the care-taking of
[Appellant’s] property. The inventory search was, therefore,
proper.

Trial Court Opinion, 6/22/17, at 5 (emphasis omitted).

On March 31, 2016, Appellant proceeded to a stipulated, non-jury trial.

The trial court found Appellant guilty of all charged crimes and, on July 19,

2016, the trial court sentenced Appellant to serve an aggregate term of 60 to

120 months in prison, followed by five years of probation, for his convictions.

N.T. Sentencing, 7/19/16, at 30-32. The trial court denied Appellant’s

post-sentence motion on August 1, 2016 and Appellant filed a timely notice of

appeal. Appellant raises two issues on appeal:

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

[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
[Appellant’s] character and rehabilitative needs, as required
under 42 Pa.C.S.A. § 9721(b) (sentencing generally)[?]

Appellant’s Brief at 5.

Appellant first claims that the trial court erred when it denied his

suppression motion.

“Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. Super.

2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an appeal

from the denial of a motion to suppress, our Supreme Court has declared:

Our standard of review in addressing a challenge to a trial
court’s denial of a suppression motion is whether the factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. When
reviewing [such a ruling by the] suppression court, we must
consider only the evidence of the prosecution and so much of
the evidence of the defense as remains uncontradicted when
read in the context of the record. . . . Where the record
supports the findings of the suppression court, we are bound
by those facts and may reverse only if the legal conclusions
drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted).

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Appellant claims that the trial court erred when it denied his motion to

suppress. According to Appellant, the inventory search of his vehicle was

“unconstitutional because [the] police conducted [the search] to investigate

the contents of the vehicle for evidence of a crime rather than to safeguard

[the contents] from subsequent claims of lost, damaged[,] or stolen

property.”6 Appellant’s Brief at 23. Specifically, Appellant claims that the

inventory search was unconstitutional because, in conducting the search, the

police harbored a “criminal investigatory motive.” Id. at 26. Further,

Appellant claims that, since the search of his vehicle was unconstitutional, all

of the evidence against him must be suppressed, as it was the product or the

fruit of the initial, unconstitutional search. Id. at 22-37.

“The Fourth Amendment to the [United States] Constitution and Article

I, Section 8 of [the Pennsylvania] Constitution protect citizens from

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6 On appeal, Appellant claims only that the purported inventory search of his
vehicle was unconstitutional; Appellant does not claim that the impoundment
of his vehicle was invalid or unconstitutional. See Appellant’s Brief at 5 and
22-37. Further, Appellant does not claim that the initial stop of his vehicle
was improper. See id. Indeed, Appellant recognizes that the initial stop was
proper, as the officers had probable cause to believe that he was driving a
vehicle while his operating privilege was suspended, in violation of 75
Pa.C.S.A. § 1543(b)(1). See id.; see also N.T. Suppression Hearing,
1/21/16, at 64-67 (Appellant acknowledges that the initial stop was valid);
Whren v. United States, 517 U.S. 806 (1996) (holding: “the constitutional
reasonableness of traffic stops [does not] depend[] on the actual motivations
of the individual officers involved. . . . Subjective intentions play no role in
ordinary, probable cause Fourth Amendment analysis”).

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unreasonable searches and seizures.”7 Commonwealth v. McAdoo, 46

A.3d 781, 784 (Pa. Super. 2012). “A search conducted without a warrant is

deemed to be unreasonable and therefore constitutionally impermissible,

unless an established exception applies.” Commonwealth v. Strickler, 757

A.2d 884, 888 (Pa. 2000). Some exceptions to the warrant requirement apply

where “the police have probable cause to believe a crime has been or is being

committed.” Commonwealth v. Petroll, 738 A.2d 993, 998-999 (Pa. 1999);

United States v. Rabinowitz, 339 U.S. 56 (1950) (search incident to arrest

exception); Commonwealth v. Gibson, 638 A.2d 203, 206-207 (Pa. 1994)

(exigent circumstances exception); Commonwealth v. Gary, 91 A.3d 102

(Pa. 2014) (automobile exception). However, “[e]ven absent probable cause,

some searches without warrants do not violate state or federal constitutional

privacy rights.” Petroll, 738 A.2d at 999. The latter category includes

searches and seizures conducted while the police are acting as community

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7 Appellant grounds his claim on appeal entirely in the Fourth Amendment to
the United States Constitution; Appellant raises no separate claim for relief
under the Pennsylvania Constitution and Appellant does not “argue that the
Pennsylvania Constitution offers greater protection [from inventory searches]
than does the United States Constitution.” See Commonwealth v. Baker,
78 A.3d 1044, 1048 (Pa. 2013); see also Appellant’s Brief at 22-37.
Therefore, in analyzing Appellant’s claim, I do not separately analyze the claim
under the Pennsylvania Constitution. See Baker, 78 A.3d at 1048 (holding
that, where the “[a]ppellant [did] not argue that the Pennsylvania Constitution
offers greater protection against cruel punishments than does the United
States Constitution,” the Supreme Court would “not engage in a separate state
constitutional review” of the claim); Commonwealth v. Wilmer, 194 A.3d
564, 565 n.1 (Pa. 2018) (same).

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caretakers. See Commonwealth v. Livingstone, 174 A.3d 609, 625-626

(Pa. 2017).

“The community caretaking doctrine has been characterized as

encompassing three specific exceptions: the emergency aid exception; the

automobile impoundment/inventory exception; and the public servant

exception, also sometimes referred to as the public safety exception.” Id. at

626-627. With respect to the inventory search exception, our Supreme Court

has held:

The purpose of an inventory search is not to uncover criminal
evidence, but to safeguard items taken into police custody in
order to benefit both the police and the defendant. In the
seminal case of [South Dakota v. Opperman, 428 U.S. 364
(1976)], the [United States Supreme] Court observed that
inventory searches of impounded vehicles serve several
purposes, including (1) protection of the owner’s property
while it remains in police custody; (2) protection of the police
against claims or disputes over lost or stolen property; (3)
protection of the police from potential danger; and (4)
assisting the police in determining whether the vehicle was
stolen and then abandoned.

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. In Commonwealth v. Henley, the
Pennsylvania Superior Court, citing Opperman, explained:

In determining whether a proper inventory search has
occurred, the first inquiry is whether the police have
lawfully impounded the automobile, i.e., have lawful
custody of the automobile. The authority of the police to
impound vehicles derives from the police’s reasonable
community care-taking functions. Such functions include
removing disabled or damaged vehicles from the
highway, impounding automobiles which violate parking

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ordinances (thereby jeopardizing public safety and
efficient traffic flow), and protecting the community’s
safety.

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.

909 A.2d 352, 359 (Pa. Super. 2006) (en banc) (citations
omitted). A protective vehicle search conducted in
accordance with standard police department procedures
assures that “the intrusion [is] limited in scope to the extent
necessary to carry out the caretaking function.” Opperman,
428 U.S. at 375.

Commonwealth v. Lagenella, 83 A.3d 94, 102-103 (Pa. 2013) (some

citations omitted); see also Colorado v. Bertine, 479 U.S. 367, 372 (1987)

(holding that a vehicle inventory search was valid and declaring that “there

was no showing that the police, who were following standardized procedures,

acted in bad faith or for the sole purpose of investigation”).

On appeal, Appellant claims that the inventory search was

unconstitutional because, in conducting the search, the police harbored a

criminal investigatory motive and the inventory search was merely a pretext

for an unconstitutional, warrantless investigatory search of the black bag. See

Appellant’s Brief at 23 and 34. The majority agrees with Appellant and holds

that an officer’s “mixed motives” will invalidate an otherwise permissible

inventory search. See Majority Opinion at **24-25. Respectfully, I believe

that the majority’s holding is incorrect.

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At the outset, I acknowledge the precedent from this Court holding that

an inventory search is invalid where the search was “coupled with the intent

of discovering evidence of a crime.” See Commonwealth v. Brandt, 366

A.2d 1238, 1241 (Pa. Super. 1976) (holding: “[a]n inventory takes place when

it is not coupled with the intent of discovering evidence of a crime”);

Commonwealth v. Landamus, 482 A.2d 619, 622 (Pa. Super. 1984)

(same); Commonwealth v. Corbin, 469 A.2d 615, 616-617 (Pa. Super.

1983) (plurality) (declaring that trial counsel was ineffective for failing to file

a motion to suppress because, even though the police possessed an

objectively valid reason to impound the defendant’s vehicle, the purported

inventory search was unconstitutional because the police harbored “an

investigatory [] motive”); see also Commonwealth v. Germann, 621 A.2d

589, 594 (Pa. Super. 1993) (“an inventory search is only excepted from the

warrant requirement or probable cause where it is motivated by a desire to

safeguard the contents of the vehicle, and not by a design to uncover

incriminating evidence”) (footnote omitted). In other words, this Court has

held that an officer’s “mixed motives” invalidate an objectively valid inventory

search. Indeed, Appellant has based his entire argument on appeal from these

cases and this precedent. See Appellant’s Brief at 22-37; Appellant’s Reply

Brief at 3-13.

I also note that the above precedent was based upon statements from

the United States Supreme Court, wherein the High Court suggested that the

mixed motivations of individual officers might invalidate “a search conducted

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in the absence of probable cause” – such as searches conducted pursuant to

the community caretaking doctrine. Whren, 517 U.S. at 811-812 (emphasis

omitted); see also Cady v. Dombrowski, 413 U.S. 433, 441 (1973) (noting

that police officers “engage in . . . community caretaking functions, totally

divorced from the detection, investigation, or acquisition of evidence relating

to the violation of a criminal statute”); South Dakota v. Opperman, 428

U.S. 364, 375-376 (1976) (upholding vehicle impoundment and inventory

search because the police followed a standard procedure and “there [wa]s no

suggestion whatever that this standard procedure, essentially like that

followed throughout the country, was a pretext concealing an investigatory

police motive”); New York v. Berger, 482 U.S. 691, 716 n.27 (1987) (in

upholding a “warrantless search of an automobile junkyard, conducted

pursuant to” the administrative inspection exception, the Court declared:

“[t]here is . . . no reason to believe that the instant inspection was actually a

‘pretext’ for obtaining evidence of respondent's violation of the penal laws”);

Whren, 517 U.S. at 811-812 (declaring that the Court’s statements in

Bertine and Burger “simply explain that the exemption from the need for

probable cause (and warrant), which is accorded to searches made for the

purpose of inventory or administrative regulation, is not accorded to searches

that are not made for those purposes”).

Nevertheless, as the United States Supreme Court has explained,

“Fourth Amendment reasonableness is predominantly an objective inquiry.”

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Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011) (quotations and citations

omitted) (emphasis added). Thus, generally,

[the United States Supreme Court] ask[s] whether the
circumstances, viewed objectively, justify the challenged
action. If so, that action was reasonable whatever the
subjective intent motivating the relevant officials. This
approach recognizes that the Fourth Amendment regulates
conduct rather than thoughts and it promotes evenhanded,
uniform enforcement of the law.

Id. at 736-737 (quotations, citations, and corrections omitted).

This pure objective-based approach gives way in “limited contexts such

as an inventory search or administrative inspection” – where an officer’s

subjective motivation may “invalidate[] objectively justifiable behavior under

the Fourth Amendment.” Kentucky v. King, 563 U.S. 452 (2011) (citations

and quotations omitted). The question in our case is: when and at what level

does an officer’s subjective motivation invalidate that officer’s “objectively

justifiable behavior”? I believe that the Pennsylvania Supreme Court’s recent

opinion in Livingstone sheds light on the answer to this question. In

Livingstone, the Supreme Court held, in the context of the community

caretaking doctrine’s “public servant exception”: “in a community

caretaker context, when under the totality of the circumstances an

objectively reasonable basis for the community caretaker function is

shown, that determination is not negated by the officer's subjective

law enforcement concerns . . . [and that,] so long as a police officer is able

to point to specific, objective, and articulable facts which, standing alone,

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reasonably would suggest that his assistance is necessary, a coinciding

subjective law enforcement concern by the officer will not negate the

validity of that search under the public servant exception to the

community caretaking doctrine.” Livingstone, 174 A.3d at 636-637

(emphasis added) (citations and quotations omitted).

In Livingstone, Pennsylvania State Trooper Jeremy Frantz was on duty

and driving his marked police cruiser when he saw a vehicle stopped on the

shoulder of Interstate 79; the vehicle’s “engine was running, but the hazard

lights were not activated.” Id. at 614. Trooper Frantz “activated his

emergency lights and, with his passenger window down, pulled alongside the

stopped vehicle.” Id. The trooper looked into the vehicle’s window and saw

Victoria Livingstone sitting in the driver’s seat with “glossy eyes” and a

“hundred mile stare.” Id. After speaking to Ms. Livingstone and observing

other signs of intoxication, Trooper Frantz arrested Ms. Livingstone. A

subsequent blood test revealed that Ms. Livingstone had a blood alcohol

content (“BAC”) in excess of the legal limit. Id.

Ms. Livingstone filed a motion to suppress the results of her BAC test,

claiming that it was the fruit of an unconstitutional seizure. The trial court

denied the motion because “Trooper Frantz, after observing [Ms.

Livingstone’s] vehicle on the side of the interstate, had a duty to determine

whether [she] was in need of assistance, and his act of approaching [her]

vehicle with his overhead emergency lights was a mere encounter.” Id. at

615 (quotations omitted).

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After Ms. Livingstone was convicted of DUI, she appealed to this Court

and we affirmed her judgment of sentence. The Pennsylvania Supreme Court

granted Ms. Livingstone’s petition for allowance of appeal and reversed our

order. Id. at 638.

Initially, the Livingstone Court held that, “when Trooper Frantz pulled

alongside [Ms. Livingstone’s] vehicle, with his emergency lights activated,

[Ms. Livingstone] was subjected to an investigative detention.” Id. at 619.

Since this initial seizure was not supported by reasonable suspicion or

probable cause, the Supreme Court next had to determine whether the seizure

was valid under the public servant exception to the warrant requirement. Id.

at 619-620.

The Court began its analysis by noting that the “community caretaking

doctrine” encompasses three exceptions to the warrant requirement: “the

emergency aid exception; the automobile impoundment/inventory exception;

and the public servant exception.” Id. at 626-627. The Court declared that

each of the three exceptions “contemplates that the police officer’s actions will

be motivated by a desire to render aid or assistance, rather than the

investigation of criminal activity.” Id. at 627. After conducting a 50-state

survey of the public servant exception, the Court held that, in Pennsylvania,

the applicability of the public servant exception depends upon 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

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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.

Id. at 637.

With respect to the second factor – that “the police action must be

independent from the detection, investigation, and acquisition of criminal

evidence” – the Supreme Court noted that the factor “is a common

requirement to warrantless searches under all three exceptions of the

community caretaking doctrine, including the emergency aid exception and

the automobile impoundment/inventory exceptions.” Id. at 635. The

Livingstone Court then explained, in depth, what it meant in requiring that

“the police action must be independent from the detection, investigation, and

acquisition of criminal evidence.” See id. I quote the Livingstone Court’s

explanation at length:

To describe th[e] requirement [that “the police caretaking
action must be independent from the detection, investigation,
and acquisition of criminal evidence”], courts have utilized
various terminology. . . . Regardless of the language used,
a critical component of the community caretaking doctrine is
that the police officer's action be based on specific and
articulable facts which, viewed objectively and
independent of any law enforcement concerns, would
suggest to a reasonable officer that assistance is
needed.

We are not suggesting, however, that an officer's
contemporaneous subjective concerns regarding criminal
activity will preclude a finding that a seizure is valid under
the community caretaking function. The Wisconsin Supreme
Court addressed a similar argument in [State v. Kramer,
759 N.W.2d 598 (Wis. 2009)], wherein the motorist argued

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that the “totally divorced” language from Cady “means that
the officer must have ruled out any possibility of criminal
activity before the community caretaker function is bona
fide.” 759 N.W.2d at 606. In rejecting the motorist's
suggestion, the court reasoned:

[T]he nature of a police officer's work is multifaceted. An
officer is charged with enforcing the law, but he or she
also serves as a necessary community caretaker when the
officer discovers a member of the public who is in need of
assistance. As an officer goes about his or her duties, an
officer cannot always ascertain which hat the officer will
wear – his law enforcement hat or her community
caretaker hat. For example, an officer may come upon
what appears to be a stalled vehicle and decide to
investigate to determine if assistance is needed;
however, the investigation may show that a crime is being
committed within the vehicle. Therefore, from the point
of view of the officer, he or she must be prepared for
either eventuality as the vehicle is approached.
Accordingly, the officer may have law enforcement
concerns, even when the officer has an objectively
reasonable basis for performing a community caretaker
function.

To conclude otherwise would ignore the multifaceted
nature of police work and force police officers to let down
their guard and unnecessarily expose themselves to
dangerous conditions.

Furthermore, to interpret the “totally divorced” language
in Cady to mean that an officer could not engage in a
community caretaker function if he or she had any law
enforcement concerns would, for practical purposes,
preclude police officers from engaging in any community
caretaker functions at all. This result is neither sensible
nor desirable.

759 N.W.2d at 608-609 (citations omitted). The court
concluded that, “in a community caretaker context,
when under the totality of the circumstances an
objectively reasonable basis for the community
caretaker function is shown, that determination is not
negated by the officer's subjective law enforcement

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concerns.” Id. at 608; see also [State v. Smathers, 753
S.E.2d 380, 386 (N.C. App. 2014)] (adopting an “objective
method of inquiry into the purpose of a seizure in the
community caretaking context,” and declining to adopt a test
where subjective concerns of crime prevention and
investigation negate public safety concerns); cf Brigham
City, Utah v. Stuart, 547 U.S. 398 (2006) (“An action is
‘reasonable’ under the Fourth Amendment, regardless of the
individual officer's state of mind, ‘as long as the
circumstances, viewed objectively justify [the] action.’ The
officer's subjective motivation is irrelevant.” (emphasis
original, citations omitted)).

We agree that it 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.
Thus, so long as a police officer is able to point to
specific, objective, and articulable facts which,
standing alone, reasonably would suggest that his
assistance is necessary, a coinciding subjective law
enforcement concern by the officer will not negate the
validity of that search under the public servant
exception to the community caretaking doctrine. We
caution, however, that “when the community caretaking
exception 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.”
[State v. McCormick, 494 S.W.3d 673, 688 (Tenn. 2016)].

Livingstone, 174 A.3d at 635-637 (emphasis added).8

The Livingstone Court held that “Trooper Frantz’s seizure of [Ms.

Livingstone] was not justified under the public servant exception.” See id.

at 638. A plurality of the Court reasoned that, even though it did not “doubt
____________________________________________

8 The block quotation is taken from Part II(B) of the Livingstone opinion. We
note that a majority of the Livingstone Court joined this section of the
opinion. See Livingstone, 174 A.3d at 638 (Justice Todd authored
Livingstone; Chief Justice Saylor and Justice Dougherty joined the opinion in
full; Justice Baer joined Parts I, II(A), and II(B) of the opinion).

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Trooper Frantz’s statement that he pulled alongside [Ms. Livingstone’s] vehicle

simply to check to see whether she needed assistance,” it was required to

reverse because the trooper “was unable to articulate any specific and

objective facts that would reasonably suggest that [Ms. Livingstone] needed

assistance.”9 Id.

I see no reason why Livingstone’s holding would not also apply to the

inventory exception. Indeed, the Livingstone Court explained that the

second factor of its test – that “the police action must be independent from

the detection, investigation, and acquisition of criminal evidence” – “is a

common requirement to warrantless searches under all three exceptions of

the community caretaking doctrine, including the emergency aid exception

and the automobile impoundment/inventory exceptions.” Id. at 635. The

Court then defined the “independent from” language as meaning, in the

context of the community caretaking doctrine, that: “when under the totality

of the circumstances an objectively reasonable basis for the community

caretaker function is shown, that determination is not negated by the officer's

subjective law enforcement concerns.” Id. at 636, quoting Kramer, 759

N.W.2d at 608.

____________________________________________

9 The Livingstone Court’s “application of the public servant exception under
the community caretaking doctrine” to the case before it was contained in Part
II(C) of the opinion. This portion of the opinion did not garner a majority of
the justices. See Livingstone, 174 A.3d at 638.

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At the very least, Livingstone refines the prior precedent from this

Court, where we held or suggested that an officer’s “mixed motives” invalidate

an objectively valid inventory search. See supra at **18-19. Further,

Livingstone highlights that – while the subjective motivation of individual

officers is a relevant consideration in the context of inventory searches – an

objectively valid inventory search is constitutional so long as it was done “in

good faith and not for the sole purpose of investigation.” Lagenella,

83 A.3d at 102-103 (quotations and citations omitted) (emphasis added); see

also Bertine, 479 U.S. at 372 (holding that a vehicle inventory search was

valid and declaring that “there was no showing that the police, who were

following standardized procedures, acted in bad faith or for the sole purpose

of investigation”).

I will now analyze Appellant’s claim that “the trial court erred in denying

[his] suppression motion because [the] police conducted the search for

criminal investigatory, rather than non-criminal inventory, purposes.”

Appellant’s Brief at 5. As noted:

In determining whether a proper inventory search has
occurred, the first inquiry is whether the police have lawfully
impounded the automobile, i.e., have lawful custody of the
automobile. . . .

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 102-103 (quotations and citations omitted).

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Here, the initial traffic stop of Appellant’s vehicle was proper, as the

police had probable cause to believe that Appellant was driving a vehicle while

his operating privilege was suspended, in violation of 75 Pa.C.S.A.

§ 1543(b)(1). Whren, 517 U.S. at 813 (holding: “the constitutional

reasonableness of traffic stops [does not] depend[] on the actual motivations

of the individual officers involved. . . . Subjective intentions play no role in

ordinary, probable cause Fourth Amendment analysis”).10

Further, although Appellant does not specifically challenge the

lawfulness of the impoundment, I note: Appellant was not legally permitted

to operate his vehicle; Appellant stopped his vehicle “in the lane of travel” on

the on-ramp to a heavily-traveled interstate highway; Appellant’s vehicle

posed a safety hazard to other motorists; there was no other person in

____________________________________________

10 Appellant does not specifically challenge the validity of the initial traffic stop.
Nevertheless, Appellant claims that the circumstances surrounding the traffic
stop “underscore[] the investigatory motive of the [inventory] search.”
Appellant’s Brief at 23. For example, Appellant claims: “[p]olice repeatedly
conducted surveillance at [Appellant’s] apartment;” “[a]lthough aware that
[Appellant] was driving without a license, the police . . . gave up repeated
chances to pull him over to address the traffic infraction;” and, the police
“stopped [Appellant] only after they suspected that he was carrying drugs and
when his car could only be parked in a position that would allow them to argue
that it posed a public-safety risk.” See Appellant’s Brief at 23-24. To the
extent Appellant attempts to probe the subjective motivations of Officer
Sullivan and Detective Moss for making the initial traffic stop, the attempt
fails. Whren, 517 U.S. at 813 (holding: “the constitutional reasonableness
of traffic stops [does not] depend[] on the actual motivations of the individual
officers involved. . . . Subjective intentions play no role in ordinary, probable
cause Fourth Amendment analysis”).

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Appellant’s vehicle; and, Appellant did not know anyone “close” who could

move the vehicle.11 The suppression court also determined that, under these

____________________________________________

11 Again, Appellant does not specifically challenge the lawfulness of the
impoundment. Appellant’s Brief at 5 and 22-37. However, in claiming that
the inventory search was merely a pretext for an investigatory search,
Appellant also attempts to demonstrate that Detective Moss’s actions, which
led to the impoundment, “further show the criminal investigatory, rather than
caretaking, motive of the search.” Appellant’s Brief at 28 (emphasis
added). As to this argument, Appellant claims that Detective Moss did not
follow the Ross Township Vehicle Tow Policy because Detective Moss: failed
to inform Appellant “that if he could arrange for a valid driver to move the car
within 20 minutes, [the] police would not tow it” and did not permit Appellant
to “move his car a couple [of] feet so that it was completely on the berm” and
would not pose a safety hazard. Id. at 28-30. Further, Appellant claims that
the police should have pulled him over earlier, but manipulated the traffic stop
so that he would park his car “in a position that would allow them to argue
that it posed a public-safety risk.” Id. at 24.

With respect to the first claim (that Detective Moss failed to inform Appellant
“that if he could arrange for a valid driver to move the car within 20 minutes,
[the] police would not tow it”), the evidence reveals that Detective Moss
substantially complied with the Ross Township Vehicle Tow Policy. Detective
Moss testified that he provided Appellant with the opportunity to arrange for
another driver to come to move the car, but Appellant informed him that there
was no one “close” who could accomplish the action and the vehicle, as it
stood, posed a safety hazard to other motorists. Moreover, the trial court
specifically found: “[c]onsistent with departmental policy, [Appellant] was
provided with an opportunity to have a local associate retrieve his vehicle[;
however, when Appellant] advised the officers that nobody was available to
retrieve the vehicle, [Detective] Moss sought to have the vehicle towed as it
was occupying the side of the road on the entry lane to a busy interstate
highway.” Trial Court Opinion, 6/22/17, at 5.

As to the second claim (that Detective Moss did not permit Appellant to “move
his car a couple [of] feet so that it was completely on the berm” and would
not pose a safety hazard), Appellant was not legally permitted drive or to park
his vehicle on the berm of Interstate 279. See 75 Pa.C.S.A. § 3353(a)(2)(vii).

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facts, the police were required to impound Appellant’s vehicle because

“nobody [was] within close proximity to the scene [who] could retrieve the

vehicle and [] the vehicle was posing a safety hazard to passing motorists.”

Trial Court Opinion, 6/22/17, at 3.

Thus, on appeal, it is unquestioned that, when the police began the

inventory search, the police had “lawfully impounded the automobile, i.e.,

ha[d] lawful custody of the automobile.” Lagenella, 83 A.3d at 102-103

(quotations and citations omitted).

As to the inventory search itself, Detective Moss testified that, pursuant

to Ross Township Police policy, he is required to inventory a vehicle prior to

the tow and that he would normally do so by, first, either memorizing the

contents of the vehicle or “writ[ing the contents] in [his] notebook” prior to

the tow. N.T. Suppression Hearing, 1/21/16, at 54 and 89-90. He testified

that his policy is to then complete a standard inventory form “when [he] get[s]

back to the station.” Id. at 89. Further, under the Ross Township Vehicle

Tow Policy, Detective Moss is granted 24 hours to submit his completed

Inventory Report form to the Records Division. Ross Township Vehicle Tow

Policy § 904(C)(4).
____________________________________________

Finally, with respect to the final claim (that the police should have pulled him
over earlier, but manipulated the traffic stop so that he would park his car “in
a position that would allow them to argue that it posed a public-safety risk”),
I again note that “the constitutional reasonableness of traffic stops [does not]
depend[] on the actual motivations of the individual officers involved. . . .
Subjective intentions play no role in ordinary, probable cause Fourth
Amendment analysis.” Whren, 517 U.S. at 813.

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Detective Moss testified that he began the inventory search of

Appellant’s vehicle after he confirmed that he would need to tow the vehicle.

N.T. Suppression Hearing, 1/21/16, at 87. As Detective Moss testified, he

initiated the inventory search by looking into the black drawstring bag that

was sitting on Appellant’s passenger seat. Id. Detective Moss testified that,

after he saw contraband in the bag, he “stopped the inventory . . . [so that he

could] obtain a search warrant and search the rest of the vehicle for further

narcotics” and arrested Appellant. Id. at 56. The suppression court heard

this testimony and concluded that Detective Moss performed a valid inventory

search. Trial Court Opinion, 6/22/17, at 5.

On appeal, Appellant attempts to delve into Detective Moss’s subjective

motivations for performing the inventory search. Specifically, Appellant

impugns the search by terming it “pretextual.” See Appellant’s Brief at 31.

The majority agrees with Appellant and holds that reversal is mandated

because, in conducting the inventory search, “[t]he 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.”

Majority Opinion at *9. In reaching these holdings, I respectfully believe that

the majority has disregarded our standard of review. Rather than viewing the

evidence in the light most favorable to the Commonwealth, the majority’s

factual recitation and analysis is replete with it second-guessing the decisions

of the police, viewing all police actions in a sinister light, and making new and

unwarranted credibility determinations. Further, not only does the majority

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improperly view the evidence in the light most favorable to Appellant, but the

majority also incorrectly holds that an officer’s mixed motives invalidate an

otherwise permissible inventory search and the majority illogically affords

Appellant greater individual protection – in effect, shielding Appellant – from

an otherwise permissible vehicle stop and inventory search simply because

the officers also suspected Appellant of possessing contraband.

I believe that, when the circumstances are viewed properly, it is clear

that the police were required (by policy) to tow Appellant’s vehicle and that

Detective Moss was required (by policy) to perform an inventory of the vehicle

before the tow. Detective Moss acted in accordance with this policy and began

his inventory by looking into the black drawstring bag. Further, since he

discovered contraband in this item, Detective Moss “stopped the inventory . .

. [so that he could] obtain a search warrant and search the rest of the vehicle

for further narcotics” and arrested Appellant. N.T. Suppression Hearing,

1/21/16, at 56.

Under these facts, I would conclude that Detective Moss conducted the

inventory search “pursuant to reasonable standard police procedures.”12
____________________________________________

12 Appellant argues that Detective Moss violated standard police procedures
because he completed a standard “Inventory Report Form,” but “omitted
numerous items” from the form, “such as a spare tire, jack, lug wrench and
insurance card.” Appellant’s Brief at 32. Appellant fails to recognize that
Detective Moss’s inventory search began and ended with the black drawstring
bag – the remainder of the vehicle was searched pursuant to the search
warrant. Further, although Detective Moss filled out the Inventory Report
Form, he testified that he completed the form pursuant to the search warrant,

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Lagenella, 83 A.3d at 102-103 (quotations and citations omitted). Moreover,

even though Detective Moss might have possessed “mixed motives” for

conducting the inventory search, the inventory was not conducted “for the

sole purpose of investigation” and Detective Moss’s action, in performing

the inventory search, was, “under the totality of the circumstances . . .

objectively reasonable.”13 See id. (quotations and citations omitted)
____________________________________________

not the inventory search. N.T. Suppression Hearing, 1/21/16, at 60 and 89-
96 (Detective Moss testified that Appellant’s vehicle “wasn’t inventoried. It
was searched pursuant to the search warrant” and that he “completed the
inventory form, but [he] didn’t complete the inventory”). Finally, this Court’s
past precedent declared that Detective Moss was required to stop the
inventory and obtain a search warrant after he discovered the contraband.
See Commonwealth v. Casanova, 748 A.2d 207, 212 (Pa. Super. 2000)
(holding that, after the police discovered contraband in the vehicle, “they
should have obtained a search warrant”); but see Gary, 91 A.3d at 138 (“in
this Commonwealth, the law governing warrantless searches of motor vehicles
is coextensive with federal law under the Fourth Amendment. The prerequisite
for a warrantless search of a motor vehicle is probable cause to search; no
exigency beyond the inherent mobility of a motor vehicle is required”).

13 Almost the entirety of Appellant’s argument is devoted to claiming that
Detective Moss’s “mixed motives” caused the inventory search to be
unconstitutional. See Appellant’s Brief at 22-37; see also Appellant’s Reply
Brief at 8 (arguing that we must reverse because the trial court found that
Detective Moss had “at least a partial investigatory motive”). As noted above,
I believe that this claim fails in light of Lagenella and Livingstone. Further,
to the extent Appellant claims that Detective Moss “admitted that his intention
in searching [Appellant’s] car was to find drugs,” I believe this claim fails
because Detective Moss repeatedly testified that, although he “hope[d] to find
[Appellant] in possession of drugs,” the “real reason for executing this
traffic stop . . . [was that Appellant was] DUI suspended.” N.T.
Suppression Hearing, 1/21/16, at 69 and 72 (emphasis added). Again, and
contrary to Appellant’s claim on appeal and the majority’s holding today,
Detective Moss’s mixed motives do not render the inventory search
unconstitutional.

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(emphasis added); Livingstone, 174 A.3d at 636. In other words, the

inventory search was valid because, regardless of Detective Moss’s mixed

motives, Detective Moss possessed specific and objective grounds to support

the impoundment and inventory search of Appellant’s vehicle, Detective Moss

followed standard police procedures in conducting the impoundment and

inventory search, and the inventory search was done “in good faith and not

for the sole purpose of investigation.” I would thus conclude that

Appellant’s first claim on appeal fails.14, 15

____________________________________________

14 Again, I do not suggest that the subjective motivation of individual officers
is irrelevant in the context of inventory searches. Indeed, as I have stressed,
it is a relevant consideration. However, as the Pennsylvania Supreme Court
has explained, “[a]n 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 102-103
(quotations and citations omitted) (emphasis added); see also Livingstone,
174 A.3d at 637 (“so long as a police officer is able to point to specific,
objective, and articulable facts which, standing alone, reasonably would
suggest that his assistance is necessary, a coinciding subjective law
enforcement concern by the officer will not negate the validity of that search
under the public servant exception to the community caretaking doctrine”);
see also Bertine, 479 U.S. at 372 (holding that a vehicle inventory search
was valid and declaring that “there was no showing that the police, who were
following standardized procedures, acted in bad faith or for the sole purpose
of investigation”). Obviously, the “in good faith and not for the sole purpose
of investigation” bar is set very high. However, the United States Supreme
Court and the Pennsylvania Supreme Court set this bar – and we must adhere.

15In arriving at its conclusion that an officer’s “mixed motives” will invalidate
an otherwise objectively valid inventory search, the majority examines
Commonwealth v. Collazo, 654 A.2d 1174 (Pa. Super. 1995) and In
Interest of M.W., 194 A.3d 1094 (Pa. Super. 2018). In both Collazo and
M.W., this Court held that the police conducted valid inventory searches and,

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For Appellant’s second claim, Appellant challenges the discretionary

aspects of his sentence. “[S]entencing is a matter vested in the sound

discretion of the sentencing judge, whose judgment will not be disturbed

absent an abuse of discretion.” Commonwealth v. Ritchey, 779 A.2d 1183,

1185 (Pa. Super. 2001). Moreover, pursuant to statute, Appellant does not

have an automatic right to appeal the discretionary aspects of his sentence.
____________________________________________

in holding that the searches were valid, we declared: the officer’s “motive for
[conducting the inventory search] 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.” In Interest of M.W., 194
A.3d at 1101; see also Collazo, 654 A.2d at 1177 (“[t]he motive for the
[inventory search] was solely to identify its owner and not to uncover evidence
of crime. The search, therefore, was within the caretaking function of the
police, and, as such, was properly conducted without a warrant”). The
majority then uses these statements to support its proposition that an officer’s
“mixed motives” will invalidate an objectively reasonable inventory search.

I believe that the majority reads too much into Collazo and M.W. First, the
cases are of limited use because, in both cases, we held that the officers
conducted valid inventory searches. Second, in rendering our holdings, we
merely stated the obvious: that, where “the motive for [conducting the
inventory search] was solely to identify the owner of the vehicle and not to
uncover evidence of a crime,” the inventory search is valid. In Interest of
M.W., 194 A.3d at 1101. In contrast to what the learned majority apparently
believes, our statements in Collazo and M.W. do not mean that, for an
inventory search to be valid, an officer must have a “pure” motivation to
conduct the inventory search. The statements simply declare that, in those
cases, each officer held a pure, subjective motivation to conduct the inventory
search and, as a result, the searches were unquestionably valid. Finally, the
statements in Collazo and M.W. are from this Court – not the United States
Supreme Court or the Pennsylvania Supreme Court. The statements thus
cannot purport to overrule the Pennsylvania Supreme Court’s holding that
“[a]n 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 102-103 (quotations and citations
omitted) (emphasis added).

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See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for

permission to appeal the discretionary aspects of his sentence. Id.

As this Court explained:

[t]o reach the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, [42 Pa.C.S.A.]
§ 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

In the case at bar, Appellant filed a timely post-sentence motion and

notice of appeal. Further, within Appellant’s Rule 2119(f) statement,

Appellant contends (amongst other things) that the trial court sentenced him

excessively because it incorrectly believed “that [Appellant] was only off [of

federal] supervision for one month before the instant arrest.” Appellant’s Brief

at 42; see also Trial Court Opinion, 6/22/17, at 9. As Appellant declares,

“[t]hat information was incorrect, as [Appellant] was off supervision for more

than one year” prior to his arrest.16 Id.
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16 Appellant did not raise this claim in his post-sentence motion or concise
statement of errors complained of on appeal. Appellant’s Post-Sentence
Motion, 7/29/16, at 1-4; Appellant’s Rule 1925(b) Statement, 4/17/17, at 1-
5. However, as Appellant correctly notes, “[a]t the sentencing hearing, the
trial court did not cite as justification for the sentence its belief that [Appellant]
ha[d] only been off of supervision for one month” and “[t]he first time the trial
court mentioned this factor was in its written opinion,” which the trial court

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This claim raises a substantial question that the sentence appealed from

is not appropriate under the Sentencing Code. Indeed, as this Court has held:

prior to imposing sentence a sentencing judge may
appropriately conduct an inquiry broad in scope, largely
unlimited either as to the kind of information he may
consider, or the source from which it may come.

Nevertheless, the discretion of a sentencing judge is not
unfettered; a defendant has the right to minimal
safeguards to ensure that the sentencing court does
not rely on factually erroneous information, and any
sentence predicated on such false assumptions is
[inimical] to the concept of due process.

Commonwealth v. Rhodes, 990 A.2d 732, 746 (Pa. Super. 2009)

(quotations and citations omitted) (emphasis added).

In its Rule 1925(a) opinion, the trial court justified its sentence by

declaring: “it was only approximately one month after he was release[d] from

federal supervision on that case that he was arrested in this case.” Trial Court

Opinion, 6/22/17, at 9. Appellant claims that this assertion is factually

incorrect, as he “was off supervision for more than one year” prior to his

arrest. Appellant’s Brief at 42. The Commonwealth agrees with Appellant and

notes that the trial court’s statement was “mistaken[].” Commonwealth’s

Brief at 44 n.13. Further, the trial court utilized this factually incorrect

____________________________________________

filed well after Appellant filed his post-sentence motion and Rule 1925(b)
statement. See Appellant’s Brief at 52 n.9; see also Trial Court Opinion,
6/22/17, at 1-10. Therefore, since the first time Appellant could have raised
the current claim was in his appellate brief, I would conclude that Appellant’s
claim on appeal is not waived.

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statement to substantiate its conclusion that: “the record reflects

[Appellant’s] absolute unwillingness to conform his conduct to the dictates of

the law.” Trial Court Opinion, 6/22/17, at 9.

Given the trial court’s mistake, I would vacate Appellant’s judgment of

sentence and remand for resentencing, as it appears that “the sentencing

court . . . rel[ied] on factually erroneous information” when it sentenced

Appellant.17 Rhodes, 990 A.2d 746 (quotations and citations omitted); see

also Commonwealth v. Bethea, 379 A.2d 102, 106-107 (Pa. 1977) (“[i]n

deciding whether a trial judge considered only permissible factors in

sentencing a defendant, an appellate court must, of necessity, review all of

the judge's comments. Moreover, in making this determination it is not

necessary that an appellate court be convinced that the trial judge in

fact relied upon an erroneous consideration; it is sufficient to render

a sentence invalid if it reasonably appears from the record that the

trial court relied in whole or in part upon such a factor”) (emphasis

added). In all other respects, however, I would affirm.

Thus, I dissent.

____________________________________________

17 Since I would vacate Appellant’s judgment of sentence and remand for
resentencing, Appellant’s remaining discretionary aspects of sentencing claims
are moot.

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