Com. v. Thompson, M.

2023 Pa. Super. 16, 289 A.3d 1104

• Court: Superior Court of Pennsylvania
• Decided: February 7, 2023
• Docket: 2632 EDA 2021
• Status: Published

Opinion

J-A24006-22

2023 PA Super 16

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL THOMPSON : : Appellant : No. 2632 EDA 2021

Appeal from the Judgment of Sentence Entered December 13, 2021 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0002233-2020

BEFORE: PANELLA, P.J., BENDER, P.J.E., and SULLIVAN, J.

OPINION BY BENDER, P.J.E.: FILED FEBRUARY 7, 2023

Appellant, Michael Thompson, appeals from the judgment of sentence

of 66 to 132 months’ incarceration1 entered following his stipulated non-jury

trial conviction of one count of person not to possess a firearm. His appellate

issues both relate to the trial court’s denial of his motion to suppress a firearm,

which was recovered during an inventory search prior to towing Appellant’s

vehicle. Appellant argues that our Supreme Court’s decision in

Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020) (holding that Article

I, Section 8 does not recognize the full federal “automobile exception” to the

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1 Appellant was initially sentenced on October 29, 2021, to 81 to 162 months

of incarceration. Appellant filed a post-sentence motion for relief on November 5, 2021, and on December 13, 2021, the court entered an order amending the sentence to 66 to 132 months of incarceration. While the trial court entered an order on December 14, 2021, granting Appellant’s post- sentence motion and vacating judgment of sentence, this Court has amended the docket to reflect the resentencing date. J-A24006-22

warrant requirement), eliminated the inventory search exception. We

disagree and affirm the judgment of sentence.

On July 1, 2020, police and medical personnel were dispatched to an

Aamco station at approximately 1:30 p.m., due to an unconscious person in

a vehicle. N.T. Suppression, 6/22/21, at 9. When Officer Joseph Vavaracalli

of the Marple Township Police Department arrived, EMT personnel were

speaking to Appellant, whose vehicle was blocking two or three other cars.

Id. at 15. Officer Vavaracalli spoke to Appellant, who appeared lethargic,

stumbled as he walked, and was slurring his speech. Id. at 17, 19. As

Appellant was incapable of operating the vehicle, Officer Vavaracalli decided

that it would be towed. Per departmental policy, Officer Vavaracalli performed

an inventory search of the vehicle to record its contents.2

On April 7, 2021, Appellant filed a motion to suppress the evidence,

generically arguing that the search violated Appellant’s rights under both the

Fourth Amendment to the United States Constitution and Article I, Section 8

of the Pennsylvania Constitution. Motion to Suppress, 4/7/21, at 1, ¶6.

Following a suppression hearing, the court denied the motion on September

2 The Commonwealth’s brief cites the affidavit of probable cause, which was

not entered into the record, as establishing a firearm was recovered. There is nothing in the record indicating from where in the vehicle the firearm was recovered.

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7, 2021,3 and Appellant proceeded to a stipulated non-jury trial to preserve

the issue for appeal. Appellant filed a timely notice of appeal and complied

with the trial court’s order to file a concise statement of matters complained

of on appeal. Appellant raises two issues for our review:

1. Did the trial court err in denying [A]ppellant[’]s motion to suppress when it determined Article 1, Section [8] of the Pennsylvania Constitution and the Supreme Court Decision in Commonwealth of Alexander [sic], 243 A[.]3d 177 ([Pa.] 2020) does not apply to an inventory search[?] Specifically[,] did the trial court err in ruling that the constitutional protections cited in Alexander are not applicable to an inventory search nor is an inventory search subject to the requirements that a warrantless search must have specific exigent circumstances as set forth in Commonwealth v. Alexander, [s]upra[?]

2. Did the trial court err in determining that neither a search warrant [n]or exigent circumstances for a warrantless search are not [sic] required to conduct an inventory search of an individual’s vehicle and as such the Pennsylvania Supreme Court[’s decision] in Commonwealth v. Alexander, [s]upra does not apply in [A]ppellant’s case[?]

Appellant’s Brief at 4-5.

Appellant’s core argument is that because Alexander held that the

federal automobile exception is incompatible with Article I, Section 8 of the

Pennsylvania Constitution, the Court necessarily eliminated the inventory

search exception to the warrant requirement as applied to automobiles. The

3 Appellant requested permission to file a brief “within a week,” and the trial

court set a due date of July 7, 2021, with the Commonwealth having ten days to reply. N.T. Suppression, 6/22/21, at 24-25. The certified record does not contain any such briefs and the docket does not show any corresponding entries. The trial court’s order of September 7, 2021 denying the motion referenced “oral argument on August 18, 2021[.]” Order, 9/7/21. The transcript of that proceeding was not ordered.

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Commonwealth submits that Alexander concerned only investigatory

searches for evidence of crime and therefore the inventory search exception

remains good law. Whether Alexander eliminated the exception presents a

pure question of law, and our standard of review is de novo. See

Commonwealth v. Pacheco, 227 A.3d 358, 366 (Pa. Super.

2020), aff'd, 263 A.3d 626 (Pa. 2021). An examination of Appellant’s

argument and Alexander’s impact, if any, on inventory searches requires a

brief discussion of federal law.

Both the Fourth Amendment and Article I, Section 8 prohibit

unreasonable searches. Pa. Const. art. I, § 8 (“The people shall be secure in

their persons, houses, papers and possessions from unreasonable searches

and seizure[.]”); U.S. Const. amend. IV (“The right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated[.]”). The text of each “does not specify

when a search warrant must be obtained.” Kentucky v. King, 563 U.S. 452,

459 (2011). The law is replete with exceptions to the warrant requirement,

i.e., a recognition that certain searches may be constitutionally reasonable

without a warrant issued by a neutral magistrate.

The inventory search that occurred in this case is one of those

exceptions. It is rooted in Cady v. Dombrowski, 413 U.S. 433 (1973), which

recognized that police officers frequently perform tasks unrelated to criminal

investigation.

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Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

Id. at 441.

Cady involved a drunk off-duty Chicago police officer who crashed his

vehicle in Wisconsin. The vehicle was towed to a privately-owned garage.

The local authorities went to the garage to search the vehicle based on their

belief that Chicago officers were required to always carry their service

revolvers. Officers searched the vehicle for the firearm and discovered

evidence that ultimately led to a murder conviction.

In determining whether the warrantless search was reasonable, the

Cady Court deemed two facts significant. The first was that the vehicle

“constituted a nuisance along the highway,” thus justifying a tow. Id. at 443.

The second was that the lower courts had made a factual finding that the

search was a standard procedure by that police department “to protect the

public from the possibility that a revolver would fall into untrained or perhaps

malicious hands.” Id. That was important because it established that the

officer’s motivation was not to look for evidence of a crime; the governmental

interest of “concern for the safety of the general public who might be

endangered if an intruder removed a revolver from the trunk of the vehicle”

was constitutionally reasonable. Id. at 447.

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In South Dakota v. Opperman, 428 U.S. 364 (1976), the United

States Supreme Court announced the inventory search exception relied upon

by the Commonwealth in this case and cited Cady’s rationale. In that case,

the police lawfully impounded a vehicle that was illegally parked. At the

impound lot, an officer observed personal items in various parts of the car.

The officer had lot personnel unlock the door and, using a standard inventory

form, began recording the contents, including what was in the unlocked glove

compartment. The officer found marijuana in the glove compartment and

Opperman was charged with possession. The Opperman Court concluded

that the search was reasonable as the police “were indisputably engaged in a

caretaking search of a lawfully impounded automobile.” Id. at 375. Like

Cady, “there [was] no suggestion whatever that this standard procedure …

was a pretext concerning an investigatory police motive.” Id. at 376. Based

on Cady and other cases involving searches of vehicles that were impounded

or otherwise in police custody, the Court determined that these types of

searches are reasonable “where the process is aimed at securing or protecting

the car and its contents.” Id. at 373.

Opperman discussed two factors that were pertinent to its

reasonableness analysis: the “inherent mobility” of a vehicle makes “rigorous

enforcement of the warrant requirement … impossible.” Id. at 367.

Additionally, “less rigorous warrant requirements govern because the

expectation of privacy with respect to one’s vehicle is significantly less than

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that relating to one’s home or office.” Id. This reduced expectation of privacy

is due to the fact vehicles “are subjected to pervasive and continuing

governmental regulation and control[.]” Id. at 368. Over time, these two

rationales combined to justify the federal “automobile exception.” See

Collins v. Virginia, ––– U.S. ––––, 138 S. Ct. 1663, 1669–70 (2018) (“The

‘ready mobility’ of vehicles served as the core justification for the automobile

exception for many years. Later cases then introduced an additional rationale

based on the pervasive regulation of vehicles capable of traveling on the public

highways.”) (quotation marks and citations omitted).

In Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (OAJC), a plurality

of our Supreme Court determined that the federal automobile exception

applied in this Commonwealth. Alexander overruled Gary, holding that the

federal automobile exception is incompatible with the protections afforded by

Article I, Section 8. As that decision explained, the pre-Gary law “recognized

an automobile exception, but unlike its federal counterpart, ours was ‘limited’

in application.” Alexander, 243 A.3d at 187-88. Following Alexander, our

state constitution recognizes a limited automobile exception, which “requires

both a showing of probable cause and exigent circumstances to justify a

warrantless search of an automobile.” Id. at 181.

Appellant maintains that this quoted language is “clear, ... concise and

unequivocal.” Appellant’s Brief at 10. He argues that following Alexander a

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vehicle is to be treated identically to a home and thus no inventory search is

permitted.

Just as law enforcement could not remove a person from inside or outside of their home who has an active arrest warrant and then before securing the home, conduct an “inventory search” of the home to protect the police from a potential civil claim of missing items, they cannot search a person’s vehicle whether as a search incident to an arrest or an inventory search. The law is to protect an individual’s rights towards “all” of his possessions and “any” place they may be. There can be no inventory search of a home and there can be no inventory search of a citizen’s vehicle.

Id. at 13.

Appellant’s argument overlooks that the limited automobile exception is

doctrinally distinct from the inventory search exception. It is true that to some

degree, the United States Supreme Court’s adoption of the inventory search

exception relied on views concerning the expectation of privacy in an

automobile’s contents that Alexander rejects. But the specific federal

automobile exception rejected in Alexander requires the presence of

probable cause as a baseline requirement; an officer cannot perform a

vehicular search under either constitution if probable cause is absent. The

“automobile exception” therefore involves a fact pattern wherein the officers

are searching for evidence of a crime. As the Opperman Court explained,

“[t]he standard of probable cause is peculiarly related to criminal

investigations, not routine, noncriminal procedures.” Opperman, 428 U.S.

at 370 n.5. Thus, while Gary and Alexander both discuss warrantless

searches of a vehicle, the context of the case involves probable cause

supporting an investigatory search for evidence of a crime. An inventory

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search falls under “community caretaking” and thus does not involve probable

cause.

While no reported decision of this Court has squarely addressed the

inventory search exception’s viability following Alexander, other cases have

recognized the fundamental point that Alexander does not explicitly address

other exceptions to the warrant requirement. See Commonwealth v.

McMahon, 280 A.3d 1069, 1073 (Pa. Super. 2022) (“[The a]ppellant points

to nothing in Alexander which modified the plain view exception, and we

decline to apply Alexander.”); Commonwealth v. Lutz, 270 A.3d 571, 576

(Pa. Super. 2022) (“Alexander did not impact its ruling because its decision

did not rest upon the analytical underpinnings of the automobile exception to

the warrant requirement, but rather upon an application of the plain view and

search incident to arrest exceptions to the warrant requirement.”) (internal

quotation marks and citation to trial court opinion omitted). See also

Commonwealth v. Heidelberg, 267 A.3d 492, 505 (Pa. Super. 2021)

(concluding that any Alexander claim was waived due to failure to preserve

the argument but concluding in the alternative that “the bags of crack cocaine

would have been lawfully – and inevitably – discovered during an inventory

search”). Our courts recognize the “axiom that the holding of a judicial

decision is to be read against its facts.” Oliver v. City of Pittsburgh, 11

A.3d 960, 966 (Pa. 2011). The relevant factual context in Alexander and

Gary was a search for evidence of a crime and the corresponding need to

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establish probable cause to search.4 The case therefore does not eliminate

the inventory search exception.

We note that Appellant appears to suggest that this was not a “true”

inventory search. Opperman recognized that a “probable-cause approach is

unhelpful when analysis centers upon the reasonableness of routine

administrative caretaking functions, particularly when no claim is made that

the protective procedures are a subterfuge for criminal investigations.”

Opperman, 428 U.S. at 370 n.5. Appellant’s argument alludes to this

possibility. Appellant’s Brief at 15 (“It’s clear from the Officer’s testimony that

he suspected criminal activity [by Appellant] and he was being arrested on an

outstanding warrant.”). The trial court did not make explicit credibility

findings in this regard, but its opinion implicitly rejected Appellant’s theory.

The trial court stated:

Officer Vavaracalli testified that … Appellant’s car in the instant matter, was blocking both the AAMCO Auto’s entrance and blocking multiple cars into their parking spots. Officer Vavaracalli had the authority to impound … Appellant’s vehicle because, as he testified, … Appellant’s vehicle was stopped in such a way that it was impeding the flow of traffic and obstructing a commercial

4 We add that reading the references in Alexander to “warrantless searches of a car” to govern every search of a car, including non-investigatory searches like this one, produces absurd results. For example, a consent search is a warrantless search. “It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Appellant’s logic would have us conclude that a consent search of a vehicle is no longer permitted following Alexander.

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business. Officer Vavaracalli was permitted to conduct an inventory search of [Appellant]’s vehicle.

Trial Court Opinion, 2/1/22, at 8. The trial court implicitly credited the

testimony that the tow was conducted pursuant to standard police procedures

and was not a subterfuge for investigating criminal activity. See

Commonwealth v. Lagenella, 83 A.3d 94, 102 (Pa. 2013) (“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.”). Both conditions were met and thus the

search was lawful.

Finally, it may be the case that some of the analysis in Alexander

regarding a citizen’s privacy interests in his or her vehicle undermines the

categorical applicability of the inventory search exception. Appellant argues

that, following Alexander, a car is on equal footing with a home, and because

a home inventory search could not be conducted an automobile inventory

search cannot, either. We are not persuaded by this argument. First, the

cited example of serving an active arrest warrant serves a criminal purpose

and does not fall under the “community caretaking” rationale that supports

the inventory search exception. Cf. Caniglia v. Strom, --- U.S. ----, 141 S.

Ct. 1596, 1598 (2021) (warrantless search of home was not justified on basis

that resident may have been suicidal and a risk to himself or others; “Cady’s

acknowledgment of these ‘caretaking’ duties” does not “create[ ] a standalone

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doctrine that justifies warrantless searches and seizures in the home”).

Second, the inventory search exception does not solely rely on protecting the

police from claims against the police. See Opperman, 428 U.S. at 378

(Powell, J., concurring) (observing that “three interests generally have been

advanced in support of inventory searches: (i) protection of the police from

danger; (ii) protection of the police against claims and disputes over lost or

stolen property; and (iii) protection of the owner’s property while it remains

in police custody.”).

That said, Alexander may well support some limitations on the

inventory search exception, as expressed by the dissenting Justices in

Opperman. See id. at 392 (Marshall, J. dissenting) (arguing that, at

minimum, an inventory search cannot take place if the car owner declines; “It

is at least clear that any owner might prohibit the police from executing a

protective search of his impounded car, since by hypothesis the inventory is

conducted for the owner’s benefit.”); see also Colorado v. Bertine, 479 U.S.

367, 385 (1987) (Marshall, J., dissenting) (noting that in Opperman the

vehicle’s owner was not present when the vehicle was towed; “In this case,

however, the owner was present to make other arrangements for the

safekeeping of his belongings[.]”) (quotation marks and citation omitted).

The Alexander Court’s rejection of the United States Supreme Court’s views

on the privacy interests involved in an automobile may well support some

limitations on the inventory search doctrine. See Bertine, 479 U.S. at 386

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(“Not only are the government’s interests weaker here than in Opperman …

but respondent’s privacy interest is greater.”) (Marshall, J., dissenting).

Here, however, Appellant argues that Alexander simply eliminated the

inventory search exception in total. We thus have no occasion to address

these types of arguments.

Judgment of sentence affirmed.

President Judge Panella joins this opinion.

Judge Sullivan concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/7/2023

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