Regulatory Commercial Vehicle Checkpoints: Do Tarbert/Blouse Guidelines Apply?

Com. v. Maguire, 175 A.3d 288 (Pa. Super. 2017), allocatur granted Aug. 7, 2018, appeal docket 41 MAP 2018

In April 2015, the Pennsylvania State Police (PSP) and the Department of Environmental Protection (DEP) organized a joint program, pursuant to 75 Pa. C.S. § 4704(a)(2) (Section 4704(a)(2)) (authorizing regulatory inspections of commercial vehicles, drivers, documents, equipment, and loads to ensure that their condition complies with Department of Transportation regulations), to inspect commercial vehicles at the Clinton County Landfill in Wayne Township. PSP inspected Jeffrey Maguire’s commercial vehicle as part of the program.  As the Superior Court majority described the procedure used:

The inspection officers established a procedure whereby each officer, as he or she became available, would stop the next truck entering the landfill.

Trooper Beaver was in a marked patrol car when Maguire arrived in a commercial vehicle, a tri-axle dump truck. Trooper Beaver exited his vehicle and motioned for Maguire to pull into the lot where the officers were conducting the inspections. Trooper Beaver asked Maguire for his documents.

Slip Op. at 2 (internal citation omitted).

During the inspection, the PSP detected alcohol on Maguire’s breath, required him to undergo field sobriety tests which he failed, and charged Maguire with driving under the influence.

Maguire filed a motion to suppress, arguing the checkpoint did not comply with the guidelines set forth in Commonwealth v. Tarbert, 535 A.2d 1035 (Pa. 1987) (plurality), and adopted by a majority of the Supreme Court in Commonwealth v. Blouse, 611 A.2d 1177 (Pa. 1992). The Tarbert/Blouse guidelines provide:

[T]o be constitutionally acceptable, a checkpoint must meet the following five criteria: (1) vehicle stops must be brief and must not entail a physical search; (2) there must be sufficient warning of the existence of the checkpoint; (3) the decision to conduct a checkpoint, as well as the decisions as to time and place for the checkpoint, must be subject to prior administrative approval; (4) the choice of time and place for the checkpoint must be based on local experience as to where and when intoxicated drivers are likely to be traveling; and (5) the decision as to which vehicles to stop at the checkpoint must be established by administratively pre-fixed, objective standards, and must not be left to the unfettered discretion of the officers at the scene.

Commonwealth v. Worthy, 957 A.2d 720, 725 (Pa. 2008), citing Blouse and Tarbert.

The trial court applied the Tarbert/Blouse guidelines, developed for non-commercial checkpoint stops, to include an inspection of a commercial vehicle, and concluded that because PSP’s inspection of Maguire’s commercial vehicle did not meet the standards set forth in Tarbert/Blouse, the inspection was unconstitutional and suppressed the evidence of Maguire’s alcohol consumption.

The Commonwealth appealed pursuant to Pa. R.A.P. 311(d), and the Superior Court reversed.  As Superior Court explained,

The Commonwealth argues that the trial court erred in expanding the Tarbert/Blouse guidelines to inspections of commercial vehicles because commercial vehicle inspections fall within the closely regulated industry exception to the Fourth Amendment warrant requirement as enumerated in [New York v. Burger, 482 U.S. 691 (1987)]. We agree.

The Superior Court began its analysis with a recitation of the Burger test:

The United States Supreme Court in Burger recognized an exception to the Fourth Amendment warrant requirement for administrative inspections in “closely regulated” businesses. The Court held that an owner or operator of a commercial business or vehicle in a closely regulated industry has a substantially reduced expectation of privacy. Thus, the Fourth Amendment warrant and probable cause requirements applicable in the context of a pervasively regulated business are lower. See Burger, 482 U.S. at 699-702.

The Burger Court also concluded that, in the context of a closely regulated business, warrantless inspections are constitutional if: (1) there is a “substantial governmental interest inform[ing] the regulatory scheme pursuant to which the inspection is made”; (2) the inspection is necessary to advance the regulatory scheme; and (3) the statute’s inspection program is applied with such certainty and regularity as to provide a “constitutionally adequate substitute for a warrant.” Burger, 482 U.S. at 702-703. The Court ultimately held that a valid administrative inspection without a warrant that uncovers evidence of a crime does not violate the Fourth Amendment. Id. at 716.

Slip Op. at 6-7.

The Superior Court then opined that the Pennsylvania Supreme Court in Commonwealth v. Petroll, 738 A.2d 993 (Pa. 1999) adopted the Burger test in the context of a warrantless search of a tractor-trailer after the driver of a tractor-trailer crashed into other vehicles, killing several individuals.  Applying the Burger test to the warrantless checkpoint search of Maguire, instead of the Tarbert/Blouse guidelines, the Superior Court determined that “the administrative inspection at issue here satisfied the Burger test” and therefore “the trial court erred in suppressing the evidence obtained as a result of the warrantless administrative inspection.”  Slip Op. at 12.

Specifically, with respect to Burger’s “certainty and regularity” requirement, the Superior Court found:

Trooper Beaver also described the process by which the Team selected the trucks to inspect. Simply, if an inspector was available when the truck arrived at the landfill, one of the inspectors inspected it. If the inspectors were unavailable because they were inspecting other trucks, the truck was not inspected. We find that this system for selecting trucks to inspect sufficiently limits the discretion of the inspectors and meets the third element of Burger.

Slip Op. at 11-12.

Judge Lazarus, in dissent, argued that the Burger test is not incompatible with Tarbert/Blouse, that both tests demand that the stop decision not be based on the law enforcement officer’s unfettered discretion, that unfettered discretion was the problem with the checkpoint stop of Maguire, and that there is no reason that the more specific standards of Tarbert/Blouse should not be applied to checkpoint stops of commercial vehicles:

Both commercial and non-commercial vehicles are heavily regulated, and thus both fall within an exception to the warrant requirement. I would find, then, that the Commonwealth’s argument is unpersuasive; the fact that commercial vehicles fall within the heavily regulated industry exception to the warrant requirement does not necessarily preclude a finding that the Tarbert/Blouse guidelines apply, and I see no reason to exempt systematic commercial vehicle inspections from those standards. Administrative searches without a warrant are permitted when there is substantial government interest, the search is necessary to further the regulatory scheme, and the inspection program provides a constitutionally adequate substitute for a warrant. Tarbert, supra; Blouse, supra. It is significant to note that the underlying principles of the Tarbert/Blouse guidelines, and the Burger requirements for administrative warrantless searches in a closely regulated industry, are compatible; most critically, both mandate limits on the discretion of inspecting officers, the key factor missing here.

Dis. Op. at 10.

The issues, as stated by petitioner are:

  1. Whether the Superior Court committed an error of law/abuse of discretion in reversing the trial court’s suppression of the evidence obtained during the commercial vehicle stop based upon failure to abide by the Tarbert /Blouse guidelines?
  2. Whether the Superior Court committed an error of law/abuse of discretion in determining that the Tarbert/Blouse guidelines do not apply to commercial vehicle check-points?
  3. Whether the Superior Court committed an error of law/abuse of discretion in failing to affirm the decision of the trial court on alternate grounds?