Commonwealth v. Thompson

315 A.3d 1277

COMMONWEALTH of Pennsylvania, Appellee

v.Michael THOMPSON, Appellant

No. 85 MAP 2023

Supreme Court of Pennsylvania.

Argued: March 5, 2024

Decided: May 31, 2024

Appeal from the Order of the Superior Court at No. 2632 EDA 2021 dated February 7, 2023 Affirming the Judgment of Sentence of the Delaware County Court of Common Pleas, Criminal Division, at No. CP-23-CR-0002233-2020 dated December 13, 2021. Margaret J. Amoroso, Judge

Hugh J. Burns Jr., Esq., Michelle Ann Henry, Esq., Pennsylvania Office of Attorney General, for Amicus Curiae Attorney General of Pennsylvania.

Brian Ray Sinnett, Esq., Maureen Flannery Spang, Esq., PA District Attorneys Association, for Amicus Curiae Pennsylvania District Attorneys Association.

Michael J. Malloy, Esq., for Appellant.

Catherine Banner Kiefer, Esq., Frederick J. Stollsteimer, Esq., Kelly Brittney Wear, Esq., Delaware County District Attorney’s Office, for Appellee.

ORDER

PER CURIAM

AND NOW, this 31^st day of May, 2024, the appeal is DISMISSED as having been improvidently granted.

Justice Wecht files a dissenting statement.

JUSTICE WECHT, dissenting

Unaccountably, today’s Majority refuses to decide the issue that we agreed to review: whether inventory searches remain valid under Pennsylvania’s Constitution following our rejection of the federal automobile exception to the warrant requirement.¹ We have enjoyed ample briefing and argument, and we should render decision. Inventory searches violate our Constitution because they deprive citizens of security in their possessions² without adequate justification. Case law has enshrined a set of flawed excuses that allow police officers to rummage systematically through citizens’ property without a search warrant, on no articulable suspicion of wrongdoing whatsoever.

Inventory searches are premised upon a fiction. This sort of search is tolerated, courts say, because (despite all appearances) it is not a matter of law enforcement at all. Rather, the governmental intrusion is branded as a "community caretaking" function—a service helpfully performed by police to safeguard citizens’ property. This is so notwithstanding that the property’s owner, whose thoughts on the matter are not invited, would prefer not to be the beneficiary of this "service." Indeed, in every case in which an appellate court perpetuates the inventory search fiction, the owner of the property has been convicted of a crime based upon what a police officer discovered while rummaging through the owner’s belongings. Quite the service, indeed.

We can call it whatever we want. The fact of the matter is that a government agent is conducting a search—without a search warrant, without any exigency or compelling need, and without even probable cause that evidence of a crime will be found inside the vehicle. For too long the law has legitimized these fishing expeditions. And because the justifications offered in their support cannot withstand even minimal scrutiny, continuing to pretend that the inventory search is a valid law enforcement function leaves the law with a "yawning credibility gap" that we should no longer tolerate.³ There is no good reason for this species of search. The inventory search is an unreasonable search, for it needlessly strips people of their right to privacy in their possessions guaranteed under Article I, Section 8 of the Pennsylvania Constitution, while providing no corresponding benefit to any legitimate governmental interest.

Privacy is the watchword. Although the reasons for the Court’s dismissal today are unstated, the difficulty may be the perceived degree of connection between the inventory search doctrine and our decision in Commonwealth v. Alexander.⁴ While Alexander does not directly answer the question before us, the connection is apparent on the face of the case law. The inventory search doctrine is built upon the very same foundation as the federal automobile exception that we rejected in Alexander: the United States Supreme Court’s insistence that people have a diminished privacy interest in their vehicles, which interest is therefore unworthy of any meaningful protection. Here in Pennsylvania, as Alexander makes plain, our Constitution (which predates the United States Constitution by a dozen years) embodies "a strong notion of privacy, notwithstanding federal cases to the contrary."⁵ This recognition of significant privacy rights forms the core of this Court’s conclusion that Article I. Section 8 of the Pennsylvania Constitution "affords greater protection to our citizens than the Fourth Amendment" in the context of vehicle searches.⁶ It is not Alexander's rejection of the federal automobile exception that controls the matter before us. Rather, Alexander’s relevance lies in its doctrinal underpinnings, which are plainly inconsistent with the assumptions underlying the federal approach to privacy rights in vehicles and, thus, with inventory searches.

I.

Let us recall what an inventory search is. When a driver is arrested and cannot lawfully move the vehicle for whatever reason, and the vehicle is in a place where it cannot remain—where it is unlawfully parked or poses some obstacle to traffic or the like—the vehicle may need to be impounded. Most often, this is achieved when a police officer summons a tow truck operated by a private towing company. But, because police officers ostensibly are in possession of the arrestee’s property (even though it often is turned over to the towing company), they deem themselves responsible for its safekeeping. Thus,, a police officer enters the car, searches it, and creates an "inventory" of the items inside it.

Why? According to the United States Supreme Court’s decision in South Dakota v. Opperman, this intrusion is justified by "three distinct needs," none of which (we are told) relates to investigation of the driver for any potential crime.⁷ I discuss each of these "needs" in detail below. It is the purportedly non-investigatory purpose of these "needs," courts say, that ameliorates the obvious constitutional concern raised when a police officer searches a person’s property without a warrant, and without even probable cause of wrongdoing. None of the safeguards that attend the warrant procedure are relevant, the inventory search doctrine holds, because, before conducting the search, the police officer removes his or her proverbial "criminal investigator" hat and dons a "community caretaker" hat, whereupon the officer’s role suddenly is "totally divorced" from any interest in investigating crime.⁸ When the officer then rummages through the car, ostensibly for non-investigatory reasons, and comes across evidence of a crime (by sheer happenstance, of course), the officer again dons the "criminal investigator" hat, and the evidence may then be seized and used against the motorist in a criminal prosecution. Through this convenient device and imperceptible shift in the officer’s ostensible motivation, evidence for a prosecution is gathered without any of the safeguards mandated by our Constitution.

II.

What does that have to do with Alexander? After all, Alexander concerned the federal automobile exception—a rule in Fourth Amendment jurisprudence that allows immediate, warrantless searches of vehicles upon the establishment of probable cause.⁹ To be sure, the federal automobile exception is a wholly distinct constitutional doctrine, which does not implicate "community caretaking," and Alexander did not address inventory searches. However, a brief review of Opperman reveals that inventory searches rely upon the same rationalization as the federal automobile exception—the same one that we rejected unequivocally in Alexander.

Opperman begins with the premise that, under the Fourth Amendment, automobiles are entitled to significantly less protection than other protected spaces. In the very first sentence of its analysis, the Opperman Court stated that the "Court has traditionally drawn a distinction between automobiles and homes or offices in relation to the Fourth Amendment."¹⁰ The Court then proceeded through the rationales that undergird the federal automobile exception. First, the Court noted the supposed exigency that arises from the inherent mobility of vehicles. "Besides the element of mobility," however, "less rigorous warrant requirements govern because the expectation of privacy with respect to one’s automobile is significantly less than that relating to one’s home or office."¹¹ The Opperman Court observed that police frequently interact with automobiles, and that automobiles are subject to pervasive government regulation.¹² The Court added that the "obviously public nature" of automobile travel further "diminishes" the expectation of privacy in vehicles:

One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one’s residence or as the repository of personal effects. … A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.¹³

Clearly underlying the Opperman Court’s rationale approving of inventory searches was its baseline assumption that the Fourth Amendment provides only minimal protection of automobiles, and that, due to the diminished expectation of privacy therein, intrusions into automobiles are not significant enough to require search warrants.¹⁴

Any reader of our decisions in this area will know that the "diminished expectation of privacy" rationale is familiar to this Court. Relying in part upon Opperman, a plurality of this Court in Commonwealth v. Gary sought to adopt the diminished-privacy rationale as the law of Pennsylvania, but did not receive majority support for its approach.¹⁵ Rather, the Court in Gary adopted the federal automobile exception only by virtue of then-Justice Saylor’s concurrence, in which he voiced "reservations," but nonetheless supported the adoption of the federal rule, not for the reasons...