Com. v. Roman, S. ( 2020 )

J-S46027-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SANDRA ROMAN :
:
Appellant : No. 76 EDA 2019
Appeal from the Judgment of Sentence Entered November 30, 2018
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-SA-0000282-2017
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
DISSENTING MEMORANDUM BY OLSON, J.: FILED JUNE 23, 2020
I respectfully dissent. Unlike my learned colleagues, I believe that the
police, under the pretext of an administrative search pursuant to 75 Pa.C.S.A.
§ 6308, conducted a warrantless criminal search under circumstances that
would not excuse the warrant requirement. Hence, as suppression was
warranted, I would hold that Appellant, Sandra Roman, is entitled to relief.
Both the Pennsylvania Constitution and the United States Constitution
express a preference for searches conducted pursuant to a warrant and that
warrantless searches survive constitutional scrutiny only in limited
circumstances. Our Supreme Court has determined:
Article I, Section 8 of the Pennsylvania Constitution and the Fourth
Amendment to the United States Constitution generally prohibit
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* Retired Senior Judge assigned to the Superior Court.
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the police from searching a person or his or her property and
seizing personal items without a search warrant. A search warrant
indicates that the police have convinced a neutral magistrate upon
a showing of probable cause, which is a reasonable belief, based
on the surrounding facts and totality of circumstances, that an
illegal activity is occurring or evidence of a crime is present. A
search without a warrant may be proper where an exception
applies and the police have probable cause to believe a crime has
been or is being committed. Even absent probable cause, some
searches without warrants do not violate state or federal
constitutional privacy rights.
Commonwealth v. Petroll, 738 A.2d 993, 998-999 (Pa. 1999).
Administrative searches, some of which may be conducted on the
premises of businesses subject to continuing government oversight and
comprehensive regulatory surveillance, constitute an exception to the warrant
requirement. In Petroll, our Supreme Court observed,
While it is well established that the police must possess probable
cause to search a business premise when there is suspicion of
illegal activity, an administrative search does not always require
a showing of probable cause. An owner of a business may not
enjoy an expectation of privacy equal to that of a personal
residence. In the name of protecting the public's welfare, the
government often weaves an intricate web of regulatory scrutiny.
Some industries have such a true history of government oversight
that owners of those closely regulated businesses should have
little or no expectation of privacy. Depending on the statutory
scheme, owners of certain closely regulated businesses should
expect that their businesses would be subject to warrantless
administrative searches.
* * *
Courts should treat a business as closely regulated, if the statutes
and regulations governing it are 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.
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Id. at 1000–1001 (internal citations, quotations, and brackets
omitted). Automobile salvage yards, repair shops, and businesses engaged
in used car sales are closely regulated industries. See id. at 1001, citing New
York v. Burger, 482 U.S. 691 (1987); see also Commonwealth v. Hudak,
710 A.2d 1213 (Pa. Super. 1998).
Within the context of automotive sales, salvage, and repair enterprises,
police officers may conduct investigations under 75 Pa.C.S.A. § 6308, which
provides, in pertinent part:
(c) Inspection.--Any police officer or authorized department
employee may, during business hours or at any other time in
which work is being conducted or work is being performed, inspect
any vehicle, or major component part for which records are
required to be kept under subsection (d), in any garage or repair
shop or on the premises of any dealer, miscellaneous motor
vehicle business, salvage motor vehicle auction or pool operator,
salvor, scrap metal processor, or other public place of business
which deals in the trade of vehicles or major component parts for
the purpose of:
(1) locating stolen vehicles or parts of vehicles or major
component parts with identification numbers, Federal
certification labels, anti-theft labels or parts stickers
removed, altered or falsified; or
(2) inspecting the records required to be kept under
subsection (d).
The owner, operator, representative of the owner or operator of
the business or other person shall permit any police officer or
authorized department employee to make investigations under
this subsection.
(d) Records.--
(1) Every salvor, miscellaneous motor vehicle business,
salvage motor vehicle auction or pool operator, scrap metal
processor, garage, repair shop and dealer shall keep
accurate records of the purchase, acquisition, sale and
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disposition of vehicles as required under sections 1103.1
(relating to application for certificate of title), 1111 (relating
to transfer of ownership of vehicle), 1113 (relating to
transfer to or from manufacturer or dealer), 1114 (relating
to transfer of vehicle by operation of law), 1119 (relating to
application for certificate of title by agent), 1161 (relating
to certificate of salvage required), 1162 (relating to transfer
to vehicle salvage dealer), 1163 (relating to transfer to
scrap metal processor) and 1164 (relating to theft vehicles).
The records shall also include a corresponding customer
receipt with the vehicle identification number, make, year
and type of vehicle, from whom the vehicle was purchased
or acquired, sold to or disposed of, the date, location and
place purchased, acquired, sold or disposed of and the
amount paid or other tender exchanged for the purchase,
acquisition, sale or disposition.
(2) The records shall also include a photocopy of a
government-issued form of photo identification from the
person towing or selling the vehicle, driver's license number
and location from where the vehicle was towed or sold and
the business name, address, license number and contact
number of the towing company.
(3) The records shall be available on the premises of the
salvor, miscellaneous motor vehicle business, salvage motor
vehicle auction or pool operator, scrap metal processor,
garage, repair shop and dealer and open to inspection by
any police officer or authorized department employee. The
records shall be maintained for three years from the date of
disposition of the vehicle.
(4) If inspection under subsection (c) reveals stolen
vehicles, stolen major component parts, vehicles or major
component parts with identification numbers, Federal
certification labels, anti-theft labels or parts stickers
removed, altered or falsified, any police officer or authorized
department employee may seize those vehicles or vehicle
parts, records relating to the seized vehicles or vehicle parts
and the business, including proof of ownership or operation
of the business, as well as any instrumentalities used to
facilitate criminal activity.
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75 Pa.C.S.A. § 6308(c)-(d). However, “[t]he police cannot conduct a
warrantless administrative search to advance a criminal investigation under
the pretext of addressing a specific, compelling governmental interest
advanced by a statutory scheme.” Petroll, 738 A.2d at 1003–1004, citing
Hudak, 710 A.2d at 1217; Commonwealth v. Slaton, 608 A.2d 5, 8 (Pa.
1992).
I believe that our decision in Hudak and our Supreme Court’s decision
in Slaton are dispositive. In Hudak,
[o]n December 1, 1995, Sgt. Dale Provins and Officer Jeffrey Judd
of the Borough of Jefferson Police Department went to Bob's Auto
Body in West Elizabeth to inspect records, documents and vehicles
at that location to determine whether the vehicles were legally on
the premises and properly owned by [Hudak]. Upon arriving at
the location, Sgt. Provins approached [Hudak], the owner of Bob's
Auto Body, and informed him that he was there for the purpose of
checking vehicle information. Sgt. Provins expressly informed
[Hudak] that they had received a tip that [Hudak] was dealing in
“hot” auto parts. At that time, Sgt. Provins was carrying a copy
of the Vehicle Code and advised appellant that under 75 Pa.C.S.A.
§ 6308(c), [Hudak] was required to allow the officers to inspect
the premises. [Hudak] permitted the police to inspect Bob's Auto
Body without a warrant.
Hudak, 710 A.2d at 1215. Upon inspection of all the vehicles at the auto
body shop, the police found a vehicle with a Vehicle Identification Number
(VIN) that “had been removed from another vehicle and had been glued on
top of the original VIN number.” Id. The Commonwealth subsequently
charged Hudak with receiving stolen property, removing and falsifying
identification numbers, and dealing in vehicles with falsified numbers. Prior
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to trial, Hudak filed a suppression motion, which the trial court denied. Upon
review, we reversed, finding:
[T]he record indicate[d] that the officers used their authority
under § 6308(c) as a pretext to gather evidence of criminal
activity. From the beginning, the officers stated that their purpose
for inspecting Bob's Auto Body was to follow up on reports of
suspected criminal activity occurring there. In fact, Sgt. Provins
testified that “I was there for the purpose of checking information
that we received that [Hudak’s] business had been involved in
dealing hot auto parts.” N.T. 1/13/97 p. 4. Moreover, the record
[did] not reveal that the inspection of Bob's Auto Body was part
of the routine enforcement of the regulatory scheme. Accordingly,
we [found] that 75 Pa.C.S.A. § 6308(c) [was] inapplicable
because the December 1, 1995 search was not a routine
inspection, and, therefore, the general Fourth Amendment
warrant requirements appl[ied]. See Slaton (where officers
intend to conduct a search for evidence, they must either obtain
a warrant or assert an exception to the warrant requirement).
Id. at 1217.
In Hudak, we relied heavily upon our Supreme Court’s prior decision in
Slaton. In Slaton,
[o]n November 21, 1983, Narcotics Agent, Eugene C. Beard, Jr.,
went to Lou's Pharmacy to conduct an investigation of a suspect
by the name of Merriweather, whom the agent believed to be
forging prescriptions. The agent identified himself, stated his
purpose, requested the right to inspect the Schedule II records of
the proprietor, Louis Slaton, and obtained [Slaton’s] permission
to do so. While conducting this initial investigation, the agent
“found a lot of forged prescriptions,” none of which related to
Merriweather, the subject of that investigation. As a result of
these initial findings the agent began contacting physicians to
ascertain whether they had in fact issued and signed the
prescriptions in question.
Prior to returning to Lou's Pharmacy on December 6, 1983, the
agent was aware that the prescriptions previously removed from
Lou's Pharmacy's Schedule II files were forgeries. The focus of
the investigation had then shifted to Slaton. Yet, neither Agent
Beard nor Agent Infantino, who conducted the inspections on
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December 6 and 7, 1983, indicated their suspicions or change of
focus to [Slaton] until January 16, 1985. On the latter date, the
agents obtained a search warrant for Lou's Pharmacy, conducted
a search, and arrested Slaton.
Slaton, 608 A.2d at 6.
Ultimately, the Slaton Court concluded:
[T]he narcotics agents' only purpose in searching Slaton's
pharmacy was to investigate alleged [criminal] activity. This was
true even when the first search was conducted. The agents never
claimed to have any administrative purpose but instead, declared
at the outset that their desire was to gather additional information
for an ongoing criminal investigation whose subject at that time
was someone other than Slaton. The search, therefore, was not
an administrative inspection conducted [] on a regular basis, but
a discretionary act by officials who were involved in an ongoing
criminal investigation. Since it was never claimed that the
searches were administrative, the question of the parameters of
an administrative search is not relevant here. The traditional
Fourth Amendment warrant requirements for a valid search,
therefore, apply in this case.
Id. at 8.
Here, the trial court found that Section 6308 authorized Trooper Rode
to inspect title documents and records and he did so during normal business
hours as statutorily required. Trial Court Opinion, 2/27/2018, at 20. The
trial court found Trooper Rode’s testimony at the suppression hearing credible
insofar as he stated that he went to A to Z Auto to investigate a case that
involved the failure to receive title to a motor vehicle, but then performed an
inspection of all of title documents at the facility pursuant to his personal
policy. Id. at 2-3. In addition, the trial court determined that “when all of
the provisions of the PennDot [a]greement are read together, A to Z Auto and
its manager, Appellant, are obligated to maintain records related to title
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documents and have such documents available for inspection by the
Pennsylvania State Police.” Id. at 19. For the reasons that follow, I would
hold that the trial court erred as a matter of law.
The trial court found that Trooper Rode initially responded to A to Z Auto
to investigate a potential crime after an individual reported that he did not
receive title to a vehicle processed by A to Z Auto. This was a dispositive
assessment. In Hudak, this Court held that where the police responded to
an automotive business to investigate a possible crime, the inspection did not
involve routine enforcement of the regulatory scheme and 75 Pa.C.S.A.
§ 6308(c) did not apply. See Hudak, supra. In such circumstances,
traditional, Fourth Amendment warrant requirements must be satisfied. See
Hudak, 710 A.2d at 1215 (where an administrative search is not a routine
inspection, the general Fourth Amendment warrant requirements apply); see
also Slaton, 608 A.2d at 8 (where officers initially intend to search for
evidence of a crime, they must obtain a warrant).
Our case law makes clear that where an officer or an agent initiates a
search for the purpose of conducting a discretionary investigation into a report
of a specific crime, the entire search is investigative in nature, not
administrative, and traditional Fourth Amendment search and seizure
principles should govern. The Majority creates an unworkable framework in
which the administrative search exception swallows the warrant requirement
when it applies two distinct legal doctrines to the same search and allows
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officers to switch midstream from discretionary to administrative inspections.
I am not questioning Trooper Rode’s credibility here. Trooper Rode may have
held a genuine belief that he merely followed a discretionary criminal
investigation with what he believed to be an administrative search because it
was more convenient to perform his duties in this manner. Nevertheless, I
would not give his testimony binding legal effect since the initial purpose of
his search (a discretionary criminal investigation) dictated the legal standard
that applied under Hudak and Slaton.
Much of the deference given to Trooper Rode’s testimony by the trial
court and the Majority in according it dispositive legal effect rests on the idea
that the latter part of the trooper’s search was “unrelated” to his initial
investigation. This is a less than compelling reason to accord Trooper Rode’s
testimony binding legal effect and, in addition, the distinction between
“related” and “unrelated” searches carries no constitutional significance under
our prior cases. In fact, the distinction is not supported by the record.
During both searches, Trooper Rode looked for irregularities in title
documentation, so the searches were integrally related in this way - the latter
simply being a significant expansion of the former. More specifically, Trooper
Rode testified that he arrived at A to Z Auto to investigate a “complaint”
wherein an unidentified person had not received title to his vehicle and that
“it looked like part of the record was processed at A to Z.” N.T., 9/28/2018,
at 9; id. at 13 (“The complaint was he had not – the person did not yet receive
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this title, and there [were] issues with how it was being processed.”). As such,
Trooper Rode “wanted to see that specific record.” Id. at 9. He then testified:
Also, when I’m there, I make a standard policy [] that when –
because, also, I’m supposed to be doing random audits and
inspections of places. Also, when I’m there, I inspect the records
as well of others just because I happen to be at the facility. And
I can still handle [a] complaint for the person and still get an audit
done at the same time.
Id. at 9-10. Thereafter, Trooper Rode explained:
When Ms. Roman arrived, again, I identified myself, who I was. I
told her I was here initially for the complaint regarding the 2012
GMC. And then I explained to her that, since I'm here, I just want
to just take a look at the rest of your records and just to make
sure that everything is in compliance and that the tag agency is
doing what they're supposed to be doing.
Id. at 13-14. (“So I asked her to see -- I need to see the titles of all the
vehicles that -- of the cars that she had for sale.”)
From that testimony, I make the following observations. First, while the
original “complaint” may not have resulted in one of the citations at issue, as
pointed out by the Majority,1 Trooper Rode set out initially to investigate
potential criminal activity related to an individual complaint concerning the
perfection of title to an automobile. As such, the record is clear that Trooper
Rode responded initially to A to Z Auto to investigate a discretionary criminal
matter. Similar to Slaton and Hudak, Trooper Rode’s intent, at the outset,
was to gather additional information regarding possible criminal conduct.
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1 See Majority at *3 n.3.
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When the initial consensual search concluded, however, Trooper Rode
immediately initiated another search based upon his personal policy to
perform administrative searches after conducting a criminal search. Within
the context of the second search, Trooper Rode sought to review title records
for all of the vehicles A to Z Auto held for sale. N.T., 9/28/2018, at 13-14.
Hence, the record shows that the latter search was simply an expanded
version of the initial criminal search, conducted under the pretext of an
administrative review.
As Slaton and Hudak make clear, it is the purpose of the officer’s initial
search which determines whether the inspection has been conducted for
investigative or administrative purposes. It is undisputed here that Trooper
Rode responded to A to Z to investigate a possible crime. When he completed
the initial phase of his search, he then expanded his inquiry into a general
investigation of all the title records relating to the vehicles A to Z Auto held
for sale under the guise of an administrative search.2 Because Trooper Rode
lacked a warrant to support that search, and since the Commonwealth failed
to demonstrate any other exception to the warrant requirement, I would hold
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2 I disagree with the Majority’s suggestion that Hudak is factually
distinguishable from this case. See Majority at 9. The Majority finds that
“[u]nlike Hudak, this was not an investigation of suspected trafficking in
stolen auto parts.” Id. While it is true that stolen auto parts are not at issue
in this matter, Trooper Rode went to A to Z Auto to investigate a specific
criminal complaint concerning title records and only afterwards expanded his
efforts to conduct a search under the guise of administrative function.
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that Appellant was entitled to suppression. See Petroll, Hudak, Slaton,
supra.
I am also unable to agree with the Majority’s conclusion that the
challenged procedure withstands scrutiny as a constitutionally valid
administrative search. Here, the Majority gives deference to the trial court’s
credibility determination that Trooper Rode “testified that he was engaged in
a permitted routine administrative inspection to insure agent compliance with
Pennsylvania law on title transfers.” Majority, at *9. I believe, however, the
Majority gives this credibility assessment too much weight in making its legal
determination.3 As set forth above, Trooper Rode stated that he made it part
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3 Aside from Trooper Rode’s testimony that he was engaged in a permitted,
routine administrative search, the Commonwealth did not present any
additional supporting evidence. See Commonwealth v. Johnson, 68 A.3d
930, 936 n.3 (Pa. Super. 2013) (“[I]t is the Commonwealth's burden to prove
that the search and seizure is valid.”) There is no evidence that the
Pennsylvania Department of Transportation (PennDot), the regulatory agency
tasked with overseeing compliance with Section 6308, gave Trooper Rode any
guidance or input regarding the manner in which he conducts administrative
searches. Appellant testified that Trooper Rode did not claim his authority
pursuant to the PennDot agreement or Section 6308. N.T., 9/28/2018, at 64-
65. Furthermore, Trooper Rode testified that he did not review the PennDot
agreement before arriving at A to Z Auto. Id. at 22. The PennDot agreement,
however, sets forth administrative sanctions for failure to maintain proper
documents and/or for failing to comply with the Motor Vehicle Code. See
PennDot Agreement, 10/14/2011, at 8-12. Those sanctions include issuing
written warnings, suspending operations temporarily, and/or terminating the
agreement. Id. However, in this case there is no evidence that PennDot took
any subsequent administrative action against Appellant as provided by the
agreement. As such, the Commonwealth failed to show any evidence of
agency involvement whatsoever. Moreover, Trooper Rode issued Appellant
the criminal citations a few hours after the search. N.T., 9/28/2018, at 70.
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of his standard policy to inspect all of the records of others when he happens
to be at a facility investigating a specific matter. Just because he stated that
it was his overall routine, does not make the procedure proper. In other
words, while Trooper Rode may be truthful in saying he believed he conducted
a routine and permitted administrative search pursuant to his own policy, his
policy is inconsistent with the statutory scheme of Section 6308 which, as
discussed below, must perform the two basic functions of a warrant.
As our Supreme Court noted in Petroll:
[A] search without a warrant of a closely regulated business will
be reasonable if it satisfies the following three criteria:
First there must be a “substantial” government interest that
informs the regulatory scheme pursuant to which the
inspection is made....
Second, the warrantless inspection must be “necessary to
further [the] regulatory scheme....”
Finally, “the statute's inspection program, in terms of the
certainty and regularity of its application, [must] provid[e]
a constitutionally adequate substitute for a warrant.” In
other words, the regulatory statute must perform the two
basic functions of a warrant: it must advise the owner of the
commercial premises that the search is being made
pursuant to the law and has a properly defined scope,
____________________________________________
There was no evidence that he consulted with PennDot or contemplated the
agreement before doing so. If the search were administrative, there were
administrative remedies available to impose. Accordingly, based upon this
record, the search ultimately resulted in only the issuance of criminal citations,
without any further administrative penalty. Because the search bore no indicia
of administrative oversight or input, there was no evidence of any corrective
administrative action taken by PennDot, and Trooper Rode issued only
criminal citations, the Commonwealth failed to prove an administrative search
rather than a criminal investigation.
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and it must limit the discretion of the inspecting
officers.
Petroll, 738 A.2d at 1000–1001, citing New York v. Burger, 482 U.S. 691,
702-703 (1987).
In this case, I would note the following. Trooper Rode’s administrative
search policy does not appear to be the type of randomized and routine search
procedure contemplated by statute. In fact, mere convenience and Trooper
Rode’s criminal investigation priorities dictated the timing and occurrence of
his administrative searches. After conducting a criminal investigative search,
the trooper testified that he always undertakes an administrative search
because he is already on site. Trooper Rode’s personal administrative search
policy of “convenience” is not the sort of regulation-driven, agency-guided
policy that is consistent with the administrative search exception to the
warrant requirement. As I stated above, the Commonwealth introduced no
evidence of agency guidance or input in the effectuation of Trooper Rode’s
administrative search policy. The result here approves an agent’s personal
policy of performing warrantless “administrative” searches immediately after
concluding criminal investigative searches based upon sheer convenience.
Finally, Trooper Rode testified that he asked to see all of the title records at A
to Z Auto immediately and without limitation. Trooper Rode’s actions blurred
the distinction between discretionary criminal searches, which require a
warrant, and routine and randomized administrative searches that do not.
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The search here was simply too broad, undefined, and placed no limits on the
discretionary authority of enforcement officers.
For all of the aforementioned reasons, I would hold that the
Commonwealth did not meet its burden in establishing a lawful seizure of the
evidence even under the framework of an administrative search. Since
Trooper Rode did not obtain a warrant and no exception to the warrant
requirement was established, the search was illegal and all of the evidence
seized was subject to suppression.
Moreover, I would reject the trial court’s reliance upon PennDot’s
agreement with A to Z Auto in determining that the search was authorized or
that Appellant consented to it. “[I]n a closely regulated industry where ‘[l]arge
interests are at stake, and inspection is a crucial part of the regulatory
scheme,’ the validity of the search does not rest upon consent.” Peterson v.
Commonwealth, Pennsylvania State Horse Racing Com'n, 449 A.2d
774, 778 (Pa. Cmwlth. 1982), citing United States v. Biswell, 406 U.S. 311,
315 (1972). “In the context of a regulatory inspection system of business
premises that is carefully limited in time, place, and scope, the legality of the
search depends not on consent but on the authority of a valid statute.”
Biswell, 406 U.S. at 315. Thus, the trial court’s reliance on the PennDot
agreement rather than the statutory language of Section 6308 was erroneous
as a matter of law.
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Regardless, upon review of the PennDot agreement, there is no
language giving the police unfettered consent to conduct searches of A to Z
Auto. The agreement permits, in relevant part:
26. [PennDot] reserves the right to make unannounced visits to
audit, observe and inspect [Appellant’s] service operations.
Temporary registration plates and related documents shall be
available for inspection, with or without notice, by authorized
Commonwealth employees or designees, including the
Pennsylvania State Police. Records required by the Department
to be maintained by [Appellant] in carrying out the duties under
this [a]greement shall be subject to periodic inspection by
authorized representatives of the Commonwealth or its
designated agents under the following conditions:
(1) Place – The inspection may be conducted at the issuing
agent’s established place of business.
(2) Time – The inspection may be conducted during regular and
usual business hours.
(3) Scope – The inspection may be limited to examination of the
records, plates, permit or other products designated by
[PennDot], inventory which are subject to the record
keeping requirement of this [a]greement and [PennDot]
regulations or, based on the initial findings, may be
expanded to include investigation of violations of the other
terms of this [a]greement or [PennDot] regulations.
PennDot Agreement, 10/14/2011, at 7, ¶ 26.
The trial court determined that this agreement “obligated [Appellant] to
maintain records related to title documents and have such documentation
available for inspection by the Pennsylvania State Police.” Trial Court Opinion,
2/27/2018, at 19. I agree with this assessment and note that maintaining
documents and making them available for police inspection during normal
business hours closely tracks the statutory language of Section 6308.
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Additionally, paragraph 26 of the agreement provides for “periodic
inspections,” statutory language used when a business is closely regulated,
“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.” Petroll, 738 A.2d at 1001. Thus, I agree that Appellant was
obligated to maintain records and have the documentation available for
inspection. However, in order to demonstrate that an administrative search
was undertaken, the Commonwealth was required to show that the inspection
was conducted within the regulatory scheme of Section 6308 and not a mere
pretext stemming from a criminal investigation. Because the Commonwealth
did not meet that burden, as discussed at length above, consent to search
based upon the PennDot agreement is unavailing.4
Finally, I would reject the trial court’s conclusion that paragraph 26(3)
of the PennDot agreement, as set forth above, permits “an expanded
investigation[.]” Trial Court Opinion, 2/27/2018, at 18. Aside from quoting
the agreement, the trial court has not cited any legal authority, and
independent research has not revealed any, to suggest that an agency could
enter into an agreement with a closely regulated business to garner blanket
____________________________________________
4 Moreover, I reiterate that A to Z Auto’s agreement with PennDot does not
change the criminal purpose of the initial search that subsequently broadened
into a search for all irregularities pertaining to vehicular title.
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consent for unfettered property searches at any time in the future. In any
event, upon my review of the agreement at issue, Appellant simply did not
consent to every police inspection at any given time.5
Ultimately, I would conclude that the trial court erred as a matter of law
in denying suppression.6 As such, I respectfully dissent.
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5 To allow agencies to require agreements that give them carte blanche to
search any aspect of closely regulated business records would essentially
eviscerate Section 6308.
Moreover, because the June 19, 2017 search of A to Z Auto constituted a
discretionary criminal investigation carried out without a warrant under the
pretext of an administrative search, any consent to the challenged search
needed to be knowingly and voluntarily given. See Commonwealth v.
Krenzel, 209 A.3d 1024, 1028 (Pa. Super. 2019). No such assessment was
made by the trial court. Instead, the trial court relied upon a document
executed in 2011 (six years before the challenged search) to conclude that
Appellant consented to the June 19, 2017 search. The document, however,
simply memorialized A to Z Auto’s obligation to maintain certain records and
make them available for inspection consistent with the regulatory purposes of
Section 6308. In addition to our precedents that make clear that the context
of administrative inspections of closely regulated businesses and the legality
of a search does not depend on consent, I would note that the 2011 agreement
would not constitute a knowing and voluntary consent to the instant
investigative search.
6 Because I believe that suppression was warranted, I decline to address
Appellant’s other allegations of trial court error.
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