Commonwealth v. Gatlos

*66CONCURRING OPINION BY

FITZGERALD, J.:

I join the majority’s disposition of Appellant’s suppression challenge to the blood samples and test results obtained from the Delaware hospital, as well as her claim concerning the trial testimony of Dr. Cohn. However, while I agree with the affirmance of the trial court’s rulings with respect to the cigar boxes seized from Appellant’s purse and the cigar seized from her car at the tow yard, I would do so on different bases. Accordingly, I respectfully concur.

First, with respect to the search of Appellant’s vehicle, found inside her car on the night and at the scene of the accident, I would distinguish the search of her purse from the search of the cigar boxes. I incorporate the facts set forth by the majority, and further note the following suppression hearing testimony.1

Trooper Catherine Miller testified to the following. When asked “specifically why [she] and Trooper Martin went into [Appellant’s] vehicle that night[,]” Trooper Miller responded that she was looking for Appellant’s license,2 because Appellant was being transported to the hospital and medical personnel needed to know her identity. N.T., 9/13/11, at 42. One of the troopers found Appellant’s license inside her purse, which was inside the vehicle. They also observed, inside Appellant’s purse, “a box missing one cigar.” Id. at 44. With respect to the empty cigar box, Trooper Miller could not recall whether it was in Appellant’s purse or in the vehicle. Id.

Corporal Steven Ranck testified to the following. “Before the vehicle was towed from the scene,” Troopers Miller and Trooper Martin advised him that they found two branded3 boxes of cigars in Appellant’s car, one empty and one with one cigar missing, with two or three cigars still in the box. Id. at 11-12. Corporal Ranck told the troopers that Appellant’s “young age” and the cigar boxes’ presence in the vehicle was “an indicator” that “raise[d his] suspicion” that cigars may have been used to ingest marijuana. Id. at 17-18. Trooper Miller then “took the cigars into custody.” Id. at 18 (emphasis added).

On cross-examination, Corporal Ranck reiterated that he “had a suspicion” of drug use when Trooper Miller showed him the two cigar boxes, and that the boxes were “taken.” Id. at 22, 33. When asked whether the police policy provided a time period in which an inventory search should or must be conducted, the corporal testified that he did not “believe there is a time limit ... off the top of [his] head.” Id. at 37. However, Corporal Ranck cited an example: if an individual is arrested for DUI and will be taken into custody prior to towing the vehicle, the police “would be doing an inventory search in [the] vehicle” because at the time the tow truck operator takes the vehicle, it is no longer in police custody. Id. at 38.

At the suppression hearing, the Commonwealth cited section 3352 of the Pennsylvania Motor Vehicle Code as providing “any police agency the right to remove a vehicle from a scene under certain circumstances,” including a crash blocking the *67road.4 Id. at 39. The Commonwealth specifically stated that “when a police officer conducts an inventory search, the Commonwealth must demonstrate that the police intrusion into the vehicle was for the purpose of taking inventory of the vehicle and not for gathering incriminating evidence.” Id. at 39-40 (emphasis added).

I agree with the majority that the initial entry into Appellant’s vehicle, the limited search for her identification, and the seizure of her license from her purse were reasonable under an extension of the rationale in Commonwealth v. Johnson, 969 A.2d 565 (Pa.Super.2009)5 and Utah’s “emergency aid doctrine.” 6 I would, however, avoid entwining an inventory search analysis. I emphasize that Trooper Miller’s stated purpose for her and Trooper Martin’s entry into Appellant’s vehicle was to search for documentation of Appellant’s identification; she did not state that they were also conducting inventory of the car at that time. Furthermore, Corporal Ranck, who had articulated his suspicion of Appellant’s drug use to the troopers, did not testify explicitly whether the cigar boxes were “taken” into “custody” as a part of the inventory policy or as evidence of drug use. See id. at 18, 33. Accordingly, although someone may have already called the towing company and it may have even arrived on scene, I would not consider the troopers’ entry into the vehicle an inventory search.

With respect to the seizure of the cigar boxes, I again incorporate the facts set forth by the majority, and further note the following. Trooper Miller did not explain whether she or Trooper Martin had opened or otherwise manipulated the cigar boxes in order to conclude one was empty and one was missing one cigar. A search inside these boxes may not have been proper for determining Appellant’s identification, as a cigar box would not be a usual place to store one’s driver’s license or identification. Furthermore, Trooper Miller did not testify as to which item in Appellant’s purse was found first — her license or the cigar box with one missing cigar. If the officers found Appellant’s license first, then there would have been no need to search further. In light of the foregoing, I do not agree that the evidence established that the cigar boxes, specifically the contents of the boxes, were “inadvertently” discovered.

Nevertheless, I would hold simply that the cigar boxes and their contents would *68have been inevitably discovered during an inventory search pursuant to 75 Pa.C.S. ¶ 3352(b), conducted as a result of Appellant’s inability to take the ear and the car’s obstruction of traffic. See Commonwealth v. Bailey, 986 A.2d 860, 862 (Pa.Super.2009) (stating evidence is admissible if prosecution can establish by preponderance of evidence that illegally obtained evidence ultimately or inevitably would have been discovered by lawful means).

Second, I would affirm the court’s denial of suppression of the cigar found in Appellant’s car at the tow yard, on the basis employed by the trial court. The majority cites Trooper Miller’s stated purpose of entering the vehicle to obtain insurance and registration information and then holds that she was conducting an inventory search. I would hold that her intention— searching for insurance and registration information — was simply not related to the goals of an inventory search. See Commonwealth v. Nace, 524 Pa. 323, 571 A.2d 1389, 1391 (1990) (stating four goals underlie inventory searches: (1) protection of defendant’s property while he is in custody; (2) protection of police against theft claims when defendant is given his property upon release; (3) protection of police from physical harm due to hidden weapons; and (4) when necessary, the establishment or verification of defendant’s identity 7). Furthermore, I would disagree with the premise implicit in the majority’s reasoning — that inventory searches were conducted at the scene of the crime and again at the tow yard. Nevertheless, as stated above, I would affirm the court’s denial of suppression based on its reasoning that the cigar would have been inevitably discovered in a proper inventory search. See Bailey, 986 A.2d at 862.

For the foregoing reasons, I respectfully concur with the majority’s disposition.

. The court held two suppression hearings, on April 19 and September 13, 2011.

. Trooper Miller could not recall whether it was she or Trooper Martin who found Appellant’s license. N.T. at 43.

.Corporal Ranck testified that he believed the boxes had the "Philly Blunts” brand on them. Id. at 12.

. See 75 Pa.C.S. ¶ 3352(b) ("Any police officer may remove or cause to be removed to a place of safety any unattended vehicle illegally left standing upon any highway ... in such position or under such circumstances as to interfere unduly with the normal movement of traffic or constitute a safety hazard.”).

The Commonwealth also cited Commonwealth v. Hennigan, 753 A.2d 245 (Pa.Super.2000), for authority that the police may "conduct an inventory search to protect the rights of the property owner from any loss [by] a road tow truck operator[,] someone on the street- or ... anyone else.” N.T. at 39.

. I agree with the majority that the facts and holding of Johnson were limited to a search of the defendant’s clothing, and did not involve a search of a vehicle. See Johnson, 969 A.2d at 566 (“We find that the need to identify an unconscious victim, in order to facilitate investigation of the attack, can be an exigent circumstance justifying a warrantless search of the victim’s clothing. We specifically hold that the instant, warrantless search was justified when the police had no reason to believe that Appellee had committed a crime.”).

.I agree. with the majority that the trial court's sole reliance on the exigent circumstances doctrine was improper, as both parties agreed that there was no probable cause to search Appellant’s purse. See Commonwealth v. Brown, 23 A.3d 544, 553 (Pa.Super.2011) ("Pursuant to the limited automobile exception, warrantless vehicle searches must be accompanied not only by probable cause, but also by exigent circumstances beyond mere mobility — ‘one without the other is insufficient.’ ”).

. By the time Trooper Miller conducted this search at the tow yard, Appellant's identity was established.