[J-11-2019] [MO: Baer, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 41 MAP 2018
:
Appellee : Appeal from the Order of the Superior
: Court at No. 654 MDA 2016 dated
: November 8, 2017, reconsideration
v. : denied January 18, 2018, Reversing
: the Order of the Clinton County Court
: of Common Pleas, Criminal Division,
JEFFERY CHARLES MAGUIRE, : at No. CP-18-CR-396-2015, dated
: March 22, 2016.
Appellant :
: ARGUED: May 15, 2019
CONCURRING AND DISSENTING OPINION
JUSTICE WECHT DECIDED: August 22, 2019
Jeffrey Maguire, operating a tri-axle dump truck, was stopped at the entrance to a
landfill in Clinton County pursuant to a commercial vehicle checkpoint being conducted
by Pennsylvania State Trooper Cory Beaver and other governmental inspectors. In this
case, we must resolve the question of whether the warrantless and suspicionless seizure
of both Maguire and the truck must be reviewed for constitutionality pursuant to the
guidelines established by this Court governing vehicle checkpoints in Commonwealth v.
Tarbert, 535 A.2d 1035 (Pa. 1987) (plurality) and Commonwealth v. Blouse, 611 A.2d
1177 (Pa. 1992), or pursuant to the “closely regulated business” exception to the Fourth
Amendment to the United States Constitution, as articulated by the United States
Supreme Court in New York v. Burger, 482 U.S. 691 (1987), and adopted by this Court
in Commonwealth v. Petroll, 738 A.2d 993 (Pa. 1999).
As the learned Lead Opinion demonstrates, the conclusion that the latter test must
apply to the circumstances at bar is inescapable. In Petroll, we unambiguously held that
“trucking is a closely regulated industry.” Id. at 1001. Bound to that holding by stare
decisis, and absent a present challenge to that legal characterization, we are constrained
to apply the Burger/Petroll rubric. Thus, I concur in that aspect of the Majority’s opinion.
I write separately, however, briefly to address the disconcerting way in which we reached
the conclusion that “trucking” is a closely-regulated industry, and the potential confusion
that may result going forward in commercial vehicle checkpoint cases.
Further, despite my agreement with the Lead Opinion that the Burger/Petroll test
governs in this case, I disagree with the Majority’s ultimate determination that Maguire
waived one of his present arguments. See Maj. Op. at 17. I would conclude that Maguire
adequately preserved his challenge to the systematic nature of the checkpoint to which
he was subjected, and I would hold that the manner in which the checkpoint was
conducted in this case was unconstitutional.
For these reasons, I join part I of the Lead Opinion. I concur in the result of part II.
I respectfully dissent as to parts III and IV, as I would reverse the Superior Court’s order.
The protections of the Fourth Amendment guard commercial property, like that
owned by private persons, against unreasonable governmental intervention or inspection.
Burger, 482 U.S. at 699 (citation omitted). “An owner or operator of a business thus has
an expectation of privacy in commercial property, which society is prepared to consider
to be reasonable.” Id. (citation omitted). However, a business owner’s expectation of
privacy in his or her commercial premises is lower than the expectation that one has in
their private residence, and is at its lowest when the business at issue falls within a
“closely regulated” industry. Id. at 700. Indeed, certain industries are so closely regulated
that “no reasonable expectation of privacy . . . could exist for a proprietor over the stock
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of such an enterprise.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978). In such
circumstances, law enforcement may perform an “administrative search” of those
commercial premises that “does not always require a showing of probable cause.” Petroll,
738 A.2d at 1000 (citations omitted).
The process for determining whether a particular business is “closely regulated”
necessitates a comprehensive evaluation of the nature of the business at issue, the
legislative or regulatory scheme created to oversee the industry, and the history of that
oversight. The typical “closely regulated” business is one that “poses a clear and
significant risk to the public welfare.” City of Los Angeles, Calif. v. Patel, 135 S. Ct. 2443,
2454 (2015). Because of the inherent risks that these industries create, “[i]n the name of
protecting the public’s welfare, the government often weaves an intricate web of
regulatory scrutiny.” Petroll, 738 A.2d at 1000. However, not all heavily regulated
businesses constitute “closely regulated” ones for purposes of the Fourth Amendment’s
protections. Courts only may treat a business as such if the regulatory scheme is
“sufficiently comprehensive and defined that the owner of commercial property cannot
help but be aware that his property will be subject to periodic inspections undertaken for
specific purposes." Burger, 482 U.S. at 705 n.16 (citation omitted). Finally, traditionally,
a business will not be considered “closely regulated” when the scheme for oversight, be
it legislative or regulatory, was new or recently created. To the contrary, “closely
regulated” businesses classically are those that have had a “long tradition of close
government supervision,” or those whose governmental regulation has been “deeply
rooted in history.” Id. at 700 (citations omitted).
In the nearly fifty years since creating the “closely regulated” business exception
to the Fourth Amendment’s mandates, the Supreme Court of the United States has
characterized only four types of businesses as “closely regulated,” i.e., those industries
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that “have such a history of government oversight that no reasonable expectation of
privacy . . . could exist for a proprietor over the stock of such an enterprise.” Barlow’s,
Inc., 436 U.S. at 313. Those businesses include: the sale of liquor, Colonnade Catering
Corp. v. United States, 397 U.S. 72 (1970); dealing of firearms, United States v. Biswell,
406 U.S. 311 (1972); mining, Donovan v. Dewey, 452 U.S. 594 (1981); and operating an
automobile junkyard, Burger, 482 U.S. 691.
Most recently, the Supreme Court declined to include hotel operations within the
list of “closely regulated” industries. Patel, 135 S. Ct. at 2454. The Court noted that “[t]he
clear import of [its] cases is that the closely regulated industry . . . is the exception.” Id.
at 2455 (quoting Barlow’s, Inc., 436 U.S. at 313). The Court further cautioned that to
“classify hotels as pervasively regulated would permit what has always been a narrow
exception to swallow the rule.” Patel, 135 S. Ct. at 2455.
As I read these Supreme Court cases, before designating an industry or a
particular business as “closely regulated,” a court should conduct a careful, historical, and
comprehensive examination of the commercial activity at issue to determine whether
there exists a deep-rooted, longstanding tradition of governmental intervention that is
necessary to protect the public from a clear and substantial risk. This is particularly
necessary in light of the magnitude of the consequence of being designated a “closely
regulated” business. Once so characterized, there no longer exists an expectation of
privacy in the premises (or vehicle) being searched and/or seized, which effectively strips
away the protections of the Fourth Amendment.
Notably, the Supreme Court has not considered whether “trucking” is a “closely
regulated” industry. This Court has. In Petroll, this Court unequivocally held that “trucking
is a closely regulated industry.” Petroll, 738 A.2d at 1001. In doing so, however, this
Court identified, but did not examine, any of the considerations outlined by the Supreme
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Court. Aside from citing a list of cases from our Superior Court and from other jurisdictions
that have addressed the question, this Court offered little analysis. We noted that, in that
case, “[t]he trial court and the Superior Court cite a variety of state and federal statutes
and regulations to support their conclusion but primarily rely on a chapter of the Motor
Vehicle Code. . . .” Id. at 1001. We then cited two of those provisions, one of which—75
Pa.C.S. § 4704—indicates that probable cause is a necessary prerequisite to an
inspection, and the other—75 Pa.C.S. § 6308(b)—is a provision permitting systematic
checkpoints of all types of vehicles. We contemplated those provisions during our
application of the three-part Burger/Petroll test, but we offered no explanation as to why
or how these provisions factored into the criteria established by the Supreme Court for
determining whether an industry is “closely regulated.”
We did not consider (in any manner, let alone comprehensively) the quantity of
regulations applicable to “trucking,” nor did we identify or contemplate the nature of any
other statutes or regulations in an effort to ascertain whether those provisions, federal or
state, amounted to an “intricate web of regulatory scrutiny.” Petroll, 738 A.2d at 1000.
Similarly, we failed to explore the history of the relationship between “trucking” and the
government. Absent such information, one now can only take the Court’s word for it that
the regulatory and statutory scheme governing “trucking” is so “sufficiently
comprehensive and defined, so that the owner of commercial property cannot help but be
aware that his property will be subject to periodic inspections undertaken for specific
purposes." Burger, 482 U.S. at 705 n.16.
Stated plainly, in Petroll, this Court leapt to a conclusion without following any of
the guideposts established by the Supreme Court of the United States. The Petroll
Court’s pronouncement that “trucking” is a “closely regulated” business, and thus
excepted from the general protections of the Fourth Amendment, appears more akin to
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an assumption reached by piggybacking off of the uncited, unverified, and unidentified
work of the lower courts rather than a carefully contemplated legal holding worthy of the
consequence attendant to that determination.
To be clear, today’s Lead Opinion is in no way at fault for that determination or for
applying it in the case sub judice. Bound by stare decisis and lacking a meaningful
challenge to Petroll’s “trucking” designation, the Lead Opinion has no choice but to utilize
the Burger/Petroll test.
Moreover, it seems to me that, if this Court were to perform the analytical task as
developed by the Supreme Court’s cases, “trucking” likely would again be deemed to be
a “closely regulated” industry. But that is beside the point and the inquiry is best left for
another day. What matters here is that this Court’s failure to conduct a thorough analysis
has created a significant risk of difficulties for courts considering the “closely regulated”
business exception in the future when a commercial vehicle is at issue.
For instance, in Petroll, the industry that we contemplated was “trucking.” Petroll
was driving a tractor-trailer when he rear-ended a vehicle in front of him at a traffic light.
Petroll, 738 A.2d at 996. Thus, the designation that “trucking” was a “closely regulated”
business naturally encompassed the tractor-trailer. However, because we did not: (1)
define the term “trucking;” (2) cite or discuss any “trucking”-specific regulations that
compelled our conclusion that “trucking” was “closely regulated”; or (3) identify specifically
the harm that any of those regulations sought to prevent, we failed to provide future courts
addressing similar businesses with any relevant guidance, which, in light of the enormity
of the consequence of being designated a “closely regulated” business, is disconcerting
to say the least.
The instant matter is a perfect illustration of my concerns. The Lead Opinion notes
that “it is indisputable that the government inspection authorized by Section 4704(a)(2)
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and which took place in this case was aimed at the trucking business, which is a closely
regulated industry.” Maj. Op. at 15 (emphasis added). However, because we do not
know what makes “trucking” a “closely regulated” business, we also do not know the limits
on what activity constitutes “trucking.” Maguire was not driving a tractor-trailer, like the
driver in Petroll. He was driving a tri-axle dump truck. Is an operator of such a vehicle a
“trucker?” Does driving a dump truck from one end of town to the other implicate the
same safety considerations as does driving a tractor-trailer across three states on an
interstate highway at seventy miles-per-hour? Perhaps what makes “trucking” a “closely
regulated” business is a restriction on the number of hours that an operator may be on
the road, or the weight and size of the vehicle, or maybe it is something else entirely. Is
a dump truck subject to the same regulations and restrictions? Without knowing precisely
what supported this Court’s determination that “trucking” is a “closely regulated” business,
a court is left to speculate as to whether the operation of a different class of commercial
vehicle (like a dump truck) also is participating in a “closely regulated” industry.
The potential for confusion, and the concomitant risk of constitutional violations,
extends to the many other commercial vehicles traveling on every street, alley, and
interstate in Pennsylvania. Cement trucks, construction vehicles, a landscaper’s pickup
truck, street sweepers, U-Haul trucks, ice cream trucks, and amphibious tour vehicles are
commercial vehicles subject to regulation and inspection, and each arguably poses a
safety risk to pedestrians and citizen drivers, and, perhaps, may be subject to law
enforcement checkpoints. If the protocol authorizing those warrantless and suspicionless
seizures is challenged, a court will have to consider—as we do today—whether each of
those commercial vehicles operates in a “closely regulated” industry, or whether the
seizures should be evaluated under the Tarbert/Blouse guidelines. Unfortunately, neither
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Petroll nor this case will be of any meaningful assistance in resolving those more
challenging inquiries.
Maguire does not challenge the ruling that “trucking” is a “closely regulated”
business and he does not argue that the operation of a dump truck is distinct from
“trucking.” Thus, again, the Lead Opinion is not wrong to review this as if it were a
“trucking” case, and we are not presented with an opportunity to revisit Petroll or any of
the questions left in the wake of its undeveloped holding. That task must await another
day. Therefore, I concur with the Lead Opinion that the Burger/Petroll factors are
applicable to this case, despite my concerns outlined above.
Although I agree with the Lead Opinion that the Burger/Petroll criteria govern such
police-citizen encounters, I disagree with the manner in which the Lead Opinion ultimately
resolves this case. In particular, I respectfully part ways with the Majority’s determination
that Maguire waived his argument that the checkpoint utilized in this case was not
systematic. Id. at 17.
The overarching question presented in this case—whether to apply Tarbert/Blouse
or Burger/Petroll to commercial vehicle checkpoints—is one of first impression. Although
we deemed “trucking” to be a “closely regulated” business in Petroll, a designation that
clearly is material for present purposes, we did not address commercial vehicle
checkpoints. Petroll involved a challenge to the constitutionality of a search of a tractor-
trailer after a traffic accident. Petroll, 738 A.2d at 996, 998. It simply was not a checkpoint
case.
Thus, when Maguire filed his suppression motion in this case, the question of
which of the relevant analytical tests applied to commercial vehicle checkpoints was an
open question in Pennsylvania. Maguire argued that Tarbert/Blouse applied. He won.
The Commonwealth appealed. Maguire was under no obligation to raise any other
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issues, including any peripheral issues pertaining to the application of the Burger/Petroll
criteria, which the Commonwealth (who lost at the suppression stage) argued was the
applicable test.
The Superior Court reversed the suppression court, holding that the Burger/Petroll
criteria applied to the checkpoint conducted in this case, not the Tarbert/Blouse
guidelines. See Commonwealth v. Maguire, 175 A.3d 288, 293-94 (Pa. Super. 2017).
The Superior Court then proceeded to apply the Burger/Petroll criteria in conjunction with
the statute that authorized the checkpoint: 75 Pa.C.S. § 4704(a)(2)1. In discussing the
Burger/Petroll criteria, the court held that this statutory provision satisfied the third
criterion because 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 the inspecting officers.” Maguire, 175 A.3d at 293.
The panel continued, “[i]n 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 of the
inspection—to ensure that vehicles meet established regulatory standards.” Id. Finally,
the Superior Court examined the manner in which the checkpoint was conducted by
Trooper Beaver and his fellow inspectors, and concluded that Trooper Beaver’s “system
1 Subsection 4704(a)(2) provides as follows:
Systematic vehicle inspection programs.--Any Pennsylvania State
Police officer or qualified Commonwealth employee engaged in a
systematic vehicle inspection program may inspect any vehicle, driver,
documents, equipment and load to determine whether they meet standards
established in department regulations.
75 Pa.C.S. § 4704(a)(2).
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for selecting trucks to inspect sufficiently limits the discretion of the inspectors and meets
the third element of Burger.” Id. at 294.
The Superior Court undeniably incorporated and applied subsection 4704(a)(2) as
part of its execution of its Burger/Petroll analysis. More importantly, in discussing the
third criteron of the test, the Superior Court examined the checkpoint to determine
whether it was operated in a systematic way so as to satisfy both subsection 4704(a)(2)’s
systematic requirement and the Fourth Amendment pursuant to Burger/Petroll. As I view
these circumstances, Maguire’s present argument that the checkpoint did not satisfy
subsection 4704(a)(2) is a fair argument in response to the Superior Court’s
Burger/Petroll analysis, and is an argument that fairly was encompassed in this Court’s
grant of allocatur. Moreover, because the argument reasonably arises from the Superior
Court’s analysis of the Burger/Petroll criteria, the first time that such examination occurred
in this case, Maguire was under no obligation to raise the issue previously. Indeed, it is
well-settled that, as appellee before the Superior Court, he was not required to raise this
issue until now. Commonwealth v. Shaffer, ___ A.3d ___, 2019 WL 2509345, at *11 (Pa.
2019) (citation omitted).
Turning to the merits of the issue, I agree with Maguire that the protocol employed
by Trooper Beaver in this case was not sufficiently systematic because it did not limit the
discretion of the officers effectuating the warrantless and suspicionless seizures of the
vehicles approaching the landfill.2 Unlike typical checkpoints, the officers here were not
2 I concur with two aspects of Chief Justice Saylor’s concurring opinion. As is
evident herein, I too do not believe that Maguire waived his present challenge to the
systematic nature of the checkpoint at issue. As well, I agree with Chief Justice Saylor
that the nature of the search should be evaluated against the Burger/Petroll criteria, and
that we should not adopt the analytical framework espoused by the United States Court
of Appeals for the First Circuit in United States v. Maldonado, 356 F.3d 130, 136 (1st Cir.
2004), and adopted by the Lead Opinion in this case. See Conc. Op. at 2-3 (Saylor, C.J.,
concurring); Maj. Op. at 16-17.
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directed to stop every truck, to stop every third truck, or to use some other system that
would limit the discretion from the officers performing the seizures. Instead, the officers
were directed simply to stop the next truck that approached the landfill whenever that
officer became available. If an officer was inspecting another vehicle, filling out
paperwork in his or her vehicle, or was just otherwise unavailable, an approaching truck
was not stopped.
In my view, this protocol was too broadly defined to eliminate, or at least
significantly curtail, the discretion of the officers operating the checkpoint. Having no
specific direction as to which trucks to seize, the possibility for manipulation was too
strong. The officer’s only instruction was to stop the next truck when he or she became
“available.” The potential for abuse is evident, as one’s decision as to when he or she is
“available” can differ significantly. Moreover, such an amorphous standard allows for the
potential that an officer can delay or extend a particular action, so as to be “unavailable,”
and seize only those trucks that he or she wants to seize. This opens the door to selection
based upon bias or prejudice, precisely the evil sought to be avoided in systematic
checkpoints.
To be clear, there is no evidence in the record that Trooper Beaver, or any other
inspector, stopped Maguire, or any other truck, based upon bias, prejudice, or any other
illicit motive. I have no reason to believe that the officers involved in this checkpoint
actually abused the process utilized here. But that is not the point. Actual evidence of
However, I disagree with the Chief Justice’s determination that the suppression
court’s ruling on the systematic nature of the checkpoint was a factual conclusion, and,
thus, effectively unreviewable by this Court. See Conc. Op. at 5. To be sure, any facts
found by the suppression court—if supported by the record—bind this Court. However,
the question of whether those facts demonstrate that the checkpoint was conducted
systematically, a statutory requirement and, at times, a constitutional inquiry, is a question
of law, which is within this Court’s power to answer. See Siekierda v. Com., Dep't of
Transp., Bureau of Driver Licensing, 860 A.2d 76, 81 (Pa. 2004).
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impropriety by a law enforcement officer during a checkpoint is not required. A reviewing
court is not concerned with the subjective actions of any particular officer. A court must
review the established protocol to ensure that it is operated on a systematic basis in order
to limit as much as possible the potential for abuse, bias, or prejudice in deciding which
vehicles to stop. This is true not only of checkpoints, but of all searches or seizures
performed pursuant to the “closely regulated” business exception. See Burger, 482 U.S.
at 703 (establishing that administrative searches of such business “must limit the
discretion of the inspecting officers”).
For these reasons, I would hold that the checkpoint was not systematic as is
required by subsection 4704(a)(2), and, thus, also was unconstitutional because it failed
to satisfy the third prong of the Burger/Petroll test. I would vacate the Superior Court’s
order, and I would remand the case to the suppression court for any further proceedings.
Because the Lead Opinion charts a different course, I respectfully dissent.
Justice Donohue joins the concurring and dissenting opinion.
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