Commonwealth v. Chambers , 920 A.2d 892 ( 2007 )

DISSENTING OPINION BY

KLEIN, J.:

¶ 1 I recognize that the police have a duty to remove cars that are blocking the public highways, that they should tow them to an area of safety, and that it is necessary to inventory a vehicle before it is towed to avoid claims that something is missing. I also agree with the majority that the language in Commonwealth v. Henley, 909 A.2d 352 (Pa.Super.2006) (en banc), supports the rationale of the majority.

¶ 2 However, as I noted in my concurring and dissenting opinion in Henley, much of the language in that opinion was dicta. In Henley, the police stopped the car in an area where it had been snowing, there were mounds of snow, and parking was prohibited. There was no choice but to tow the car.

¶3 I do not believe that means that every time the police pull a car over and find there is no insurance, registration, or driver’s license, they should have free rein to search the car. If the driver consents to leave the car where it is and take the risk of theft or vandalism, there should be no problem in either allowing the driver to go a short distance to park the car legally or have the officer drive the car a short distance to park it legally. It well may be that if there is a valid registration and insurance certificate, a friend or family member could arrive quickly to remove the car. Even if there is no registration or insurance, someone could come to tow the car privately.

¶ 4 The alternative is to essentially overrule the notice requirements of 75 Pa. C.S.A. § 6309.2 by allowing the police to search immediately if the stop occurs in a no-parking zone. Even more serious, any time police see a car violating a traffic regulation, they can wait to pull the car over and use this as an excuse for a search, essentially overruling the Fourth Amendment. When it is easy to have the car pulled over to a safe location, as it was in this case, I do not believe the impossible burden of proving that the stop was a pretext for a search should be placed on the defendant.

¶ 5 For these reasons, I respectfully dissent.