IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 62 MAL 2022 : Respondent : Petition for Allowance of Appeal : from the Order of the Superior Court : v. : : : DAVID GALLOWAY, : : Petitioner : : : : :
DISSENTING STATEMENT
JUSTICE WECHT FILED: September 6, 2022
This case presents a number of important questions regarding the reasonableness
of certain inferences drawn by a Pennsylvania State Trooper during the course of a traffic
stop that likely are to recur in future cases. As explained below, the trooper in this case
developed reasonable suspicion based upon broad, unsupportable assumptions that
would apply to anyone in or around Philadelphia or to those driving along a major
thoroughfare. The Superior Court’s endorsement of these general assumptions, which
this Court declines to review, will undermine constitutional protections against
unreasonable searches and seizures, most notably the requirement that suspicion of
criminal activity be individualized. By declining to grant allowance of appeal in this case,
this Court permits the Superior Court’s endorsement of the trooper’s assumptions to
become entrenched into Pennsylvania law, denying this Court the opportunity to assess
whether such generalized assumptions comport with the requirement of individualized suspicion. The result of the Court’s decision is that suspicion for purposes of
constitutional interactions between individuals and law enforcement tallies automatically
against anyone in or around Philadelphia or driving along roadways that connect to that
city. And there is no reason to believe that police cannot make similar assumptions about
other urban areas and highways. In short, the Superior Court’s decision threatens the
rights of all Pennsylvanians and is worthy of this Court’s review. Because the Court
passes on the opportunity, I respectfully dissent.
The traffic stop in this case occurred at 7:19 p.m. on Christmas Eve 2018 after
Pennsylvania State Police Trooper Luke McIlvaine clocked a black Honda Civic driving
nine miles per hour over the posted speed limit of 55 mph on the southbound portion of
I-95 in Tinicum Township, Delaware County. Notes of Testimony (“N.T.”), Suppression
Hr’g, 9/11/2020, at 10. John Difebo, a resident of Wilmington, Delaware, was driving.
Trooper McIlvaine later testified that the stop was part of a holiday enforcement unit,
which was put together in an effort to reduce the likelihood of traffic accidents by
maintaining a visible police presence on the highway during heavy travel periods as a
signal to other drivers to slow down. Id. at 73, 75. As such, Trooper McIlvaine did not
intend to write Difebo a ticket for speeding, which, in any event, would have been about
$43 plus any applicable costs. Upon approaching the vehicle, Trooper McIlvaine knocked
on the window, identified himself and the reason for the traffic stop, id. at 10, asked Difebo
for his identification, and immediately informed Difebo that he was only going to give him
a warning. Id. at 38-39. According to the officer, without prompting, Difebo “immediately
blurted out that he was coming from South Street” in Philadelphia. Id. at 16.
For safety purposes, Trooper McIlvaine approached the passenger side of the
vehicle, where he encountered the petitioner, David Galloway, sitting in the front seat.
While waiting for Difebo to retrieve his license, registration, and insurance, Trooper
[62 MAL 2022] - 2 McIlvaine observed that Galloway was “smoking a fresh cigarette” and “just letting the
ash fall on himself.” Id. at 15-16. Galloway’s “eyes were wide, he was closed, away from
[the officer] and put his head down.” Id. at 16. “He was sweating profusely.” Id. When
the officer asked Galloway for his identification, Galloway explained that he did not have
it with him, but he provided his name and date of birth. Id. at 40, 43; see also id. at 50-
51 (acknowledging that Difebo also provided a Wilmington address for Galloway, which
“check[ed] out”). From the time Trooper McIlvaine activated his lights and sirens, this
initial stage of the stop lasted less than three minutes.
After acquiring their information, Trooper McIlvaine asked Difebo to accompany
him back to his police vehicle for further questioning, where Difebo was patted down. The
officer explained that it is safer for him to conduct highway traffic stops that way for a few
reasons: (1) “there’s no driver in the vehicle to flee”; (2) he “can hear better” over the
highway noise from inside his police vehicle; and (3) he can “make sure [the person being
questioned] doesn’t have any weapons on him.” Id. at 17, 45. Difebo “lean[ed] on” the
passenger side window of Trooper McIlvaine’s vehicle while the officer sat in the driver’s
seat and confirmed the validity of Difebo’s information. Id. at 18. During their
conversation, Difebo made an offhand remark that he “can’t afford a ticket.” Id. at 19.
Difebo also told Trooper McIlvaine that he and Galloway had gone to Ishkabibble’s, a
South Street restaurant, to bond over cheesesteaks. Id. at 18, 47. When Trooper
McIlvaine inquired about parking on South Street, Difebo acknowledged that he had to
pay to park. Trooper McIlvaine then asked, “isn’t that expensive,” to which Difebo replied
that he was there for less than half-an-hour. Id. at 22-23.
By this point the weather was “extremely cold,” with the temperature hovering
somewhere “between 20 and 30 degrees.” Id. at 20. This prompted Difebo, a self-
described “little guy” who was clad only in jeans and a sweatshirt, to repeatedly express
[62 MAL 2022] - 3 “how [c]old he is,” id., and to ask if he could sit in the police vehicle to get warm, a request
that Trooper McIlvaine ignored. Id. at 49-52. Difebo was “pacing,” “jump[ed] up and
down,” and stuck his hands into the pockets of his sweatshirt. Id. at 49. Trooper McIlvaine
processed Difebo’s license, registration, and insurance, which revealed no issues. Id. at
20, 39. He also conducted a criminal history check on Difebo, which apparently came
back clean as well. Id. at 21. After completing his investigation of Difebo, Trooper
McIlvaine then performed a similar search of Galloway’s history. The search did not
produce a picture ID, but it did show that Galloway’s license was suspended, that he had
a few outstanding tickets, and that he “had a lengthy criminal history involving drug
dealing” in Delaware, though he was not currently on probation or parole and had no open
warrants. Id. at 21, 40, 52, 61.
Roughly thirteen minutes into this second phase of the stop, Trooper McIlvaine
returned to the Honda to speak with Galloway. He did so for “[s]everal reasons”: “[t]o tell
[Galloway that] his license is suspended, to confirm that it is his via his social security
number and [to] have a conversation with him, not to confirm or deny my suspicions.” Id.
at 23. The first thing Trooper McIlvaine asked Galloway—who was “still sweating in 20
degree weather,” “still smoking cigarettes, [and] still ashing all over himself”—was why
the pair were in Philadelphia. Id. Galloway did not initially make eye contact. Trooper
McIlvaine said that Galloway seemed “extremely nervous,” “completely out of the norm
from what I see on [a] normal traffic stop.” Id. at 24. Galloway replied that he went to
South Street to do some “Christmas shopping.” Id. At that moment, less than a minute
after reapproaching and speaking with Galloway, Trooper McIlvaine believed “[t]hat
there’s probably some type of criminal activity going on” involving narcotics. Id. He
promptly went back to his vehicle and called for backup. Id.
[62 MAL 2022] - 4 Less than a minute later, Trooper Beers1 arrived and spoke with Trooper McIlvaine,
who said that Difebo’s and Galloway’s stories conflicted and, for the first time, relayed
that he had suspicions that there might have been a gun in the car. Id. at 25. Trooper
McIlvaine then asked Difebo for permission to search the vehicle, which Difebo declined.
Id. at 26. Nevertheless, Trooper McIlvaine returned to Difebo’s vehicle “[t]o wait for either
a [drug-sniffing] dog or to continue my investigation.” Id. He then removed Galloway
from the vehicle. Id. at 26-27. After removing Galloway, Trooper McIlvaine observed a
glass “marijuana bowl” in plain view on the center console. Id. at 27. When he informed
Difebo and Galloway of his discovery, Difebo admitted that the pipe was his. Id. at 28.
Trooper McIlvaine then decided to search the vehicle. On the floor in front of the
passenger seat where Galloway was seated, the officer discovered “1,575 bags of
fentanyl inside of [sealed] cookie boxes.” Id. at 29-30. Difebo and Galloway were
arrested, and a syringe was discovered on Difebo’s person incident to his arrest. Id. at
70. Both men were charged with narcotics-related offenses.
Galloway moved to suppress the physical evidence on the grounds that Trooper
McIlvaine lacked reasonable suspicion of criminal activity sufficient to justify extending
the traffic stop after declining to issue Difebo a ticket. Trooper McIlvaine testified to the
foregoing facts, and then offered the following broad assumptions in an attempt to
substantiate his suspicions. Based upon his “training and experience,” he noted that “the
Philadelphia area . . . is a high drug, high crime area.” Id. at 19. He also explained that
the particular stretch of I-95 where he stopped Difebo is a known drug-trafficking corridor.
He elaborated that “Philadelphia has the best fentanyl and heroin around. People come
from out of state all the time, Delaware, Maryland, Cecil County, Wilmington. They
purchase the narcotics in the Philadelphia area because it’s cheaper and it’s better. They
1 Trooper Beers’ first name does not appear in the record.
[62 MAL 2022] - 5 take it back to where they’re from . . . and sell it for a profit because it’s worth double,
triple in that case.” Id. at 30-31. To that end, he noted,
a lot of times you’ll see somebody who has a valid license driving in a valid vehicle. In this case, [that] is exactly what I saw[,] Mr. Difebo has a valid license, the vehicle is valId. The Defendant Mr. Galloway is suspended. This is just in case they do get stopped for something like this, you know, they don’t get looked into too much because they’ll have a valid license.
Id. at 31. After estimating that it would have taken Difebo thirty to forty-five minutes
to drive to South Street from his home in Wilmington, Trooper McIlvaine opined that is
“not financially feasible” for someone experiencing “financial hardships” to make that drive
for a cheesesteak. Id. at 19, 32. Trooper McIlvaine speculated that the two men may
have been messaging each other to get their stories straight, id. at 32, but he conceded
that there was no direct evidence of any communications between them for the duration
of the stop. See id. at 21, 22 (indicating that Difebo “was on the phone at some points in
time” (but not “too much”), and that the officer couldn’t tell who Difebo might have been
“communicating with or anything”).
The Court of Common Pleas of Delaware County, per the Honorable James P.
Bradley, granted Galloway’s motion. The court concluded that Trooper McIlvaine “did not
even attempt to perform any of” the “tasks remaining for the traffic infraction” after
accomplishing the purpose of the stop. Tr. Ct. Op. at 5. “Instead, he embarked on tasks
wholly unrelated to the initial traffic stop without any level of legal suspicion required for
a detention.” Id. at 5-6. As evidenced by the court’s independent examination of the
officer, the court was especially skeptical of his speculative reasoning. See N.T.,
Suppression Hr’g, 9/11/2020, at 72-79. The court discounted Trooper McIlvaine’s
testimony, finding that his assertions fell “well short of reasonable suspicion.” Tr. Ct. Op.
at 10.
[62 MAL 2022] - 6 The Superior Court reversed in a unanimous, published decision. Commonwealth
v. Galloway, 265 A.3d 810 (Pa. Super. 2021). The panel disagreed with the trial court’s
conclusion that Trooper McIlvaine subjected Galloway to an unlawful investigative
detention when he “continued to question [Galloway] after informing [Difebo] that he
planned to issue him a warning and he could leave shortly.” Id. at 816. Although the
court acknowledged that “Trooper McIlvaine had accomplished the ‘seizure’s mission’ in
addressing the traffic violation that had warranted the initial stop” after confirming the
validity of Difebo’s documentation, Id. (quoting Rodriguez v. United States, 575 U.S. 348,
354 (2015)), the court concluded that the officer “possessed the requisite reasonable
suspicion to extent the traffic stop to investigate his concerns that [Galloway] and [Difebo]
were engaged in criminal activity,” id., and that “this interaction seamlessly transitioned
into a second[] investigative detention whereby Trooper McIlvaine sought to ask
additional questions of [Galloway] on account of his reasonable suspicion ‘[t]hat there’s
probably some type of criminal activity going on.’” Id. at 817 (quoting N.T., Suppression
Hr’g, 9/11/2020, at 24).
The panel highlighted the officer’s designation of Philadelphia and I-95 as “well
known” conduits “for narcotics trafficking”; both men’s nervous demeanor; Difebo’s
statement that he could not afford a speeding ticket; and the results of Galloway’s criminal
history check. Id. The court reasoned that Trooper McIlvaine was justified in extending
his investigation because he “had been provided dubious answers” about the men’s
reasons for travelling to Philadelphia; whereas Difebo told the officer that they had gone
for cheesesteaks, Galloway separately said that he went Christmas shopping.
Additionally, the court indicated that Trooper McIlvaine had “observed [Difebo] on his cell
phone as he was speaking with [Galloway], which led him to infer that the occupants were
communicating to get their stories straight.” Id. Taking these facts and inferences
[62 MAL 2022] - 7 together, the court held that Trooper McIlvaine’s suspicions were reasonable and that his
second investigatory detention was lawful. Accordingly, the court reversed the
suppression order and remanded the case for trial.
Problematically, in my view, in reversing the suppression order, the Superior Court
read the record from the suppression hearing in the light most favorable to the
Commonwealth, even though Galloway had prevailed below. In that posture, an appellate
court “may consider only the evidence of the defense and so much of the evidence for
the Commonwealth as remains uncontradicted when read in the context of the record as
a whole.” Commonwealth v. Mistler, 912 A.2d 1265, 1268-69 (Pa. 2006). Likewise, a
reviewing court must give effect to every reasonable inference in the defendant’s favor.
Cf. Commonwealth v. Perez, 249 A.3d 1092, 1103 (Pa. 2021) (explaining that the
reasonableness of inferences relied upon in establishing a prima facie case of criminal
culpability must be assessed under a “more-likely-than-not” standard); Id. at 1103-04
(holding that the lower courts erroneously drew numerous inferences in the defendant’s
favor that were unsupported by the preliminary hearing record). And it may not reassess
the trial court’s credibility determinations. Galloway makes a compelling case that these
principles were not followed here.
From an appellate perspective, it appears that the trial court’s concerns about
Trooper McIlvaine’s credibility were reasonable and supported by the record. In that
regard, Trooper McIlvaine’s shifting explanations for removing Galloway from the vehicle
were noteworthy. For instance, he testified that he pulled Galloway out of the car because
Galloway might have fled if left inside alone, despite the fact that Galloway had waited
patiently in the car for twenty minutes while it was running without any indication that he
might take off. N.T., Suppression Hr’g, 9/11/2020, at 68-69. Alternatively, he said that
he removed Galloway from the car because he wanted to secure it while waiting for a
[62 MAL 2022] - 8 drug-sniffing dog, even though he never requested that a dog be brought to the scene.
Id. at 64-65. He also speculated that there might have been a gun in the car, which he
derived from Galloway’s criminal history alone, another apparent justification for detaining
him.
Trooper McIlvaine’s suspicion that criminal activity was afoot due to the pair’s
apparent “nervousness” likely was a consequence of questionable inferential reasoning.
The officer testified that Galloway was sweating profusely when he approached the
vehicle, and he found this unusual because it was so cold outside. But he did not consider
whether the heat was turned up inside Difebo’s car or the fact that Galloway was wearing
a hat, a heavy hooded-sweatshirt, and sweatpants. Id. at 67-68. It seems unlikely that
a person would produce the amount of sweat that Galloway evidently exhibited just in the
sixty seconds it took for Trooper McIlvaine to pull over the car and begin speaking to the
men. Given Galloway’s history with drugs and the fact that drug paraphernalia was found
nearby, it sems more reasonable to conclude that he was under the influence of one or
more controlled substances at the time, which might explain his excessive sweating,
nervous demeanor, and absentminded mishandling of his cigarette ash. Similarly,
Trooper McIlvaine asserted that Difebo was nervous throughout the stop, but the only
thing he could point to as evidence of Difebo’s supposedly nervous demeanor after their
initial interaction were his efforts to keep warm in the freezing weather by “pacing” next
to the officer’s vehicle. Id. at 49. The record reflects Difebo’s several earnest attempts
to seek shelter from the elements during the twenty minutes he was left standing on the
shoulder, and thus supports the conclusion that he simply was acting as any
underdressed person stuck out in the cold might. Indeed, Trooper McIlvaine
acknowledged that Difebo was truthful and polite throughout their interaction, which belies
[62 MAL 2022] - 9 any suggestion that he was being evasive. See id. (noting that Difebo wasn’t “hesitating”
when answering questions, “but he wanted to leave”).
Perhaps most troubling, though, was Trooper McIlvaine’s dismissal of Difebo’s
story about traveling to Philadelphia to buy cheesesteaks because he thought Difebo was
experiencing “financial hardships” and because he broadly considered the city as a whole
to be a “high drug, high crime” area. The Superior Court endorsed the trooper’s
characterizations. As a threshold matter, general designations of neighborhoods as “high
crime” areas seems to have become a box-checking heuristic for law enforcement in
search-and-seizure cases. While designating localized portions of an area as prone to
criminal activity may be one thing, labeling an entire major city in that way is another thing
altogether. To the extent that tagging neighborhoods, much less entire cities and
interstate thoroughfares, as “high crime” has become rote in the suppression context, it
undermines the requirements of individualized suspicion and disserves the millions of
law-abiding citizens who live in and travel to and from those places, who are no less
entitled to the Constitution’s protections because of that unfortunate statistical
circumstance, the standards for which we have never defined. We would do well to
dissuade law enforcement from depending too much on such amorphous characteristics.
See Commonwealth v. Barr, 240 A.3d 1263, 1291 (Pa. Super. 2020) (Strassburger, J.,
joined by Bender and Lazarus, JJ., concurring) (noting “discontent with the
Commonwealth’s reliance on the ‘high-crime area’ factor in support of a finding of
probable cause” and opining that “the status of the neighborhood at issue as a ‘high-crime
area’ should not be relevant to the probable cause determination”); id. (“People who live
in poor areas that are riddled with crime do not have fewer constitutional rights than
people who have the means to live in ‘nice’ neighborhoods.”). Stated otherwise, and just
as concerning, relying upon such a premise means that probable cause or reasonable
[62 MAL 2022] - 10 suspicion begins to tally against each and every person who steps foot in Philadelphia,
whether for leisure, business, or residency, simply by being present, which erodes the
requirement of individualized suspicion.
Specifically with regard to Difebo’s fiscal situation, Trooper McIlvaine inferred that
Difebo was experiencing “financial difficulties” from a comment he made about being
unable to “afford” a ticket. But the recording bears out that this comment clearly arose in
the context of a discussion Difebo and the officer were having about how many points
Difebo had on his Delaware license. Difebo had incurred ten points as of that day and
was afraid that he would lose his license if he received a speeding ticket. Id. at 46-48. In
Delaware, a driver’s license is suspended when he or she incurs fourteen or more points,
with less severe penalties starting at twelve points. Driving more than nine miles per hour
over the speed limit incurs a four-point penalty in Delaware, which takes certain moving
violations committed in other jurisdictions into account when assessing points and issuing
problem-driver improvement actions. In that light, it certainly would have been reasonable
for Difebo, who was caught driving nearly ten miles over the speed limit, to seek the
officer’s sympathies by saying that he couldn’t “afford” a ticket in the colloquial sense of
being unable to bear losing his license for the mandatory minimum term of four months—
not that he literally couldn’t pay the fine.
What’s more, Trooper McIlvaine’s suggestion that Difebo was acting suspiciously
because he was doing “pretty expensive” things—like driving his stepfather about thirty
miles so that Galloway could go Christmas shopping, paying for less than an hour of
parking, and buying a cheesesteak meal for “$15 or $16,” id. at 48—while professing to
be unable to afford a speeding ticket demands a leap of logic so broad as to be beyond
a creditable justification for the prolonged detention of the two men. Nonetheless, the
Superior Court credited this reasoning as well, and concluded that it was reasonable for
[62 MAL 2022] - 11 Trooper McIlvaine to infer that Difebo and Galloway were lying because they had
“provided dubious answers” for their trip to Philadelphia. Galloway, 265 A.3d at 817. In
particular, the court noted that Galloway “initially told Trooper McIlvaine that they went to
Philadelphia to Christmas shop, and did not say anything about cheesesteaks until after
Trooper McIlvaine observed [Difebo] on his cell phone as he was speaking with
[Galloway], which led him to infer that the occupants were communicating to get their
stories straight.” Id. But the recording belies Trooper McIlvaine’s and the court’s
supposition that Difebo was feeding Galloway a story “as [the officer] was speaking with”
Galloway. Id. Difebo stood directly in front of the dashcam with his hands in his pockets
during the officer’s brief interactions with Galloway. And it would have been difficult, if not
impossible, for Galloway to steal a glance at his phone while being interrogated by
Trooper McIlvaine, who held a flashlight on Galloway, without the officer witnessing it.
The officer made no mention of seeing Galloway on his phone in his testimony, and he
conceded that he had no evidence that the two actually had communicated.
Trooper McIlvaine’s suspicions also turned upon Galloway’s criminal history,
another factor that weighed heavily in the Superior Court’s analysis. But the officer only
learned about Galloway’s drug-dealing past after having completed the purpose of the
investigative detention. In other words, Trooper McIlvaine was satisfied that Difebo was
who he claimed to be, that he had no outstanding warrants or tickets, and that he was
driving with a valid license in a properly registered and insured vehicle. The trooper had
no intention of writing Difebo a ticket, so for all intents and purposes, the reason for the
traffic stop had been resolved and Difebo should have been free to leave. But Trooper
McIlvaine held onto Difebo’s license and other documents so that he could pursue a
separate investigation into Galloway, even though Galloway could not have been cited
for any traffic offenses as a passenger in Difebo’s vehicle. This was not a “seamless
[62 MAL 2022] - 12 transition,” as the Superior Court put it, and the officer’s vague speculation “[t]hat there’s
probably some type of criminal activity going on” is not normally the type of articulable
suspicion necessary to detain a person for questioning. See id. On these facts, it appears
that Trooper McIlvaine likely lacked the quantum of cause necessary to effectuate another
investigative detention, and thus exceed the permissible scope of the search. Since he
discovered Galloway’s criminal history only after beginning his second investigation,
neither that history nor anything else that Trooper McIlvaine gleaned from his further
interactions with Galloway from that moment on could retrospectively support the
subsequent, unlawful seizure.
In sum, when he decided to prolong the investigative detention, all that
Trooper McIlvaine had in his ken were the specific instances of Difebo’s and Galloway’s
apparent nervousness. The officer’s general belief that Philadelphia is a source for low-
cost narcotics and that some people transport drugs between the city and Delaware on I-
95 did not constitute individualized suspicion that Difebo and Galloway were engaged in
criminal activity; the same “facts” could have applied to just about any driver on that road
that evening. Because their detention largely was based upon Trooper McIlvaine’s
hunch—an accurate hunch, but a hunch nonetheless—it seems that the trial court was
justified in suppressing the fruits of his unlawful search. The Superior Court disagreed,
but it evidently did so after erroneously applying the standard of review, drawing
inferences in favor of the non-prevailing party, and over-relying upon baseless
supposition unsupported, and in some instances flat-out contradicted, by the evidence.
These significant errors warrant granting allowance of appeal. That they occurred in a
published decision makes our intervention all the more necessary.
Additionally, the Superior Court’s decision appears to be in conflict with United
States Supreme Court precedent. In Rodriguez, the Supreme Court explained that the
[62 MAL 2022] - 13 constitutional authority for a traffic stop ends “when tasks tied to the traffic infraction are—
or reasonably should have been—completed.” 575 U.S. at 354. “Beyond determining
whether to issue a traffic ticket, an officer’s mission includes ‘ordinary inquiries incident
to [the traffic] stop,’” such as “checking the driver’s license, determining whether there are
outstanding warrants against the driver, and inspecting the automobile’s registration and
proof of insurance.” Id. at 355 (quoting Illinois v. Caballes, 543 U.S. 405, 408 (2005))
(emphasis added). Running a criminal background check on a passenger is not an inquiry
ordinarily incident to a traffic stop for speeding, particularly one in which the driver’s
information “checks out” and the purpose of the stop has been fulfilled (in this case with
a warning and assurances that the men were free to leave). The pertinent question is not
whether an officer may request a passenger’s identification during a traffic stop, but
whether it is reasonable to prolong a traffic stop after its purpose—i.e., investigating the
driver and deciding whether to write a ticket—has been fulfilled in order to conduct a
general background investigation of a passenger for potential issues wholly unrelated to
the stop. Galloway offers a persuasive argument that it is not reasonable, and this Court’s
ability to clarify the law in this area, which is of great importance to the public, alone
justifies further consideration.
As for Galloway’s second issue presented, although the Superior Court determined
that the extended seizure was lawful, it did not then consider whether the
Commonwealth’s warrantless search of Difebo’s vehicle was supported by probable
cause and exigent circumstances, as now is required under Commonwealth v. Alexander,
243 A.3d 177 (Pa. 2020). In his petition for allowance of appeal, Alexander set forth a
simple legal proposition: to justify a warrantless search of a vehicle, a police officer must
possess probable cause that a crime has been committed and that evidence of the crime
likely will be found inside the vehicle, and also must show that some exigency exists which
[62 MAL 2022] - 14 would preclude the officer from obtaining a search warrant. Even assuming, arguendo,
that Trooper McIlvaine had probable cause to search Difebo’s vehicle after observing
marijuana paraphernalia in plain view (though not the physical plant or odor indicating its
recent use)—which is a dubious proposition in light of our recent decision in
Commonwealth v. Barr, 266 A.3d 25 (Pa. 2021)—on this record it seems that exigent
circumstances plainly were lacking. Trooper McIlvaine had backup support on the scene;
Galloway and Difebo had been detained and handcuffed; and the vehicle was about to
be impounded. There was nothing preventing the officer from obtaining a warrant to
search the vehicle and its contents, including the sealed boxes in which the narcotics
were secreted.
Galloway states succinctly that “[t]he Commonwealth set forth no exigent
circumstances to justify a warrantless search,” and that the Superior Court “erred by
failing to apply Alexander.” PAA at 28-29. Both assertions inarguably are true. Although
the Commonwealth belatedly claimed that Trooper McIlvaine’s “need to ensure his safety
created an exigent circumstance that warranted an immediate search of the vehicle
because [Galloway] was not restrained,” Commonwealth’s Superior Ct. Br. at 21, the
Commonwealth never asserted exigency on those or any other grounds at the
suppression hearing or in any trial court filings. And Alexander was decided nearly a year
before the lower court’s decision in this case, so it cannot be said that the panel was
unaware of it. Nonetheless, the court failed to address Alexander’s applicability to these
facts. While Galloway did not proffer a full-throated merits analysis of this question in his
petition, he was not required to do so at this stage. The claimed deficiencies of the
Commonwealth’s case are apparent from these minimal contentions. Finally, I note that
Galloway has not waived this issue. Galloway plainly asserted that Trooper McIlvaine
lacked even reasonable suspicion for the prolonged detention, so he could not have
[62 MAL 2022] - 15 satisfied Alexander’s dual requirements in any event. See Motion to Suppress,
2/25/2020, ¶ 7. Of course, as the prevailing party at the suppression hearing, Galloway
bore no burden of preservation before the Superior Court, so that court’s failure to address
Alexander, which the Commonwealth had invoked in an effort to distinguish Galloway’s
circumstances, is inexplicable. Having lost before the suppression court, it was the
Commonwealth’s burden to affirmatively demonstrate exigency on appeal. On this
record, it probably could not.
For the foregoing reasons, I would grant allocatur in this case. At a minimum,
Galloway has demonstrated that he was entitled to the benefit of Alexander. More
importantly, however, Galloway has presented a compelling argument that our lower
courts are endorsing articulations of reasonable suspicion that likely are diminishing the
constitutional rights of motorists and passengers in Pennsylvania. Because the Court
declines to review this important issue, I respectfully dissent.
Justice Donohue joins this dissenting statement.
[62 MAL 2022] - 16