J-S14024-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

THOMAS ROBERT ROMESBURG 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 669 WDA 2022

Appeal from the Judgment of Sentence Entered April 28, 2022

In the Court of Common Pleas of Allegheny County Criminal Division at 

No(s): CP-02-CR-0001335-2021

BEFORE: PANELLA, P.J., BENDER, P.J.E., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED: JULY 7, 2023

Appellant, Thomas Robert Romesburg, appeals from the judgment of 

sentence of 90 days’ house arrest and 18 months of probation, imposed 

following his non-jury trial conviction for one count of driving under the 

influence (DUI). Appellant’s sole issue on appeal challenges the trial court’s 

denial of his motion to suppress drug paraphernalia located in the center 

console of his vehicle. We affirm.

On October 26, 2020, shortly before 6:00 a.m., Appellant crashed his 

vehicle into a utility pole. An ambulance, along with Moon Township Police 

Department Officer Cuyler Hale and Corporal James Kazmierczak, were 

separately dispatched. Medical personnel arrived first. The officers observed 

extensive damage to Appellant’s car: its rear axle, two wheels, and a large 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S14024-23

- 2 -

portion of its drivetrain had been severed. Officer Hale testified that the 

vehicle “was parked approximately 20 or 30 yards from a utility pole[.]” N.T.,

3/17/22, at 8. Officer Hale told Corporal Kazmierczak to search Appellant’s 

vehicle for Appellant’s driver’s license and registration, then went to speak to 

Appellant, who was receiving treatment in the ambulance. Appellant admitted 

that he had been “driving at an excessive speed and lost control.” Id. at 10. 

Appellant nodded off at times and appeared to be confused. 

Meanwhile, Corporal Kazmierczak had already located Appellant’s 

license and registration, along with syringes, a plastic spoon, a Brillo pad, a 

piece of steel wool, and some empty stamp bags. Believing Appellant to be 

under the influence of drugs, Officer Hale asked Appellant to submit to field 

sobriety tests. Appellant had difficulty following the instructions and the tests

were stopped. Appellant then admitted he had used heroin earlier that 

morning.

At some point during these events, officers checked Appellant’s

information in police databases and discovered an active arrest warrant.1 

Appellant was then arrested, both for the active warrant and for the suspected 

DUI offense. A tow truck was called to remove Appellant’s vehicle. Corporal 

Kazmierczak testified that the policy of Moon Township Police Department is 

to tow crashed vehicles.

____________________________________________

1 No further detail was supplied regarding the warrant.
J-S14024-23

- 3 -

Appellant filed a motion to suppress the drug paraphernalia as well as 

statements made while receiving treatment.2 The trial court concluded that 

the officers illegally searched Appellant’s vehicle but opined that the evidence 

would have been inevitably discovered during an inventory search in 

connection with the tow. Appellant proceeded to a stipulated non-jury trial

and was convicted. He filed a timely notice of appeal and complied with the 

trial court’s order to file a concise statement pursuant to Pa.R.A.P. 1925(b). 

He now raises one issue on appeal: “Did the court below err in denying 

Appellant’s pretrial motion to suppress physical evidence, given that the 

warrantless inventory search of [his] car was improper, given that 

immobilization rather than impoundment of [his] car was called for (with 

immobilization being an action for which an inventory search is not 

permitted)?” Appellant’s Brief at 3. 

Our standard of review is well-settled:

Our standard of review of a denial of suppression is whether the 

record supports the trial court’s factual findings and whether the 

legal conclusions drawn therefrom are free from error. Our scope 

of review is limited; we may consider only the evidence of the 

prosecution and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the record as 

a whole. Where the record supports the findings of the 

suppression court, we are bound by those facts and may reverse 

only if the court erred in reaching its legal conclusions based upon 

the facts.

Commonwealth v. Schwing, 964 A.2d 8, 11 (Pa. Super. 2008).

____________________________________________

2 The trial court denied the motion to suppress his statements, and Appellant 

does not pursue that issue on appeal. 
J-S14024-23

- 4 -

Both the Fourth Amendment and Article I, Section 8 of the Pennsylvania 

Constitution prohibit unreasonable searches. U.S. Const. amend. IV (“The 

right of the people to be secure in their persons, houses, papers, and effects, 

against unreasonable searches and seizures, shall not be violated[.]”); Pa. 

Const. art. I, § 8 (“The people shall be secure in their persons, houses, papers 

and possessions from unreasonable searches and seizure[.]”). “Absent the 

application of one of a few clearly delineated exceptions, a warrantless search 

or seizure is presumptively unreasonable.” Commonwealth v. Heidelberg, 

267 A.3d 492, 502 (Pa. Super. 2021) (citation omitted). The trial court relied 

on the inventory search exception to the warrant requirement. Recently, in 

Commonwealth v. Thompson, 289 A.3d 1104 (Pa. Super. 2023), this Court 

rejected the claim that the inventory search exception was eliminated in 

Commonwealth v. Alexander, 243 A.3d 177 (Pa. 2020). We discussed the 

history of the exception as follows:

[The inventory search exception] is rooted in Cady v.

Dombrowski, 413 U.S. 433 ... (1973), which recognized that 

police officers frequently perform tasks unrelated to criminal 

investigation.

. . . .

In South Dakota v. Opperman, 428 U.S. 364 ... (1976), the 

United States Supreme Court announced the inventory search 

exception relied upon by the Commonwealth in this case and cited 

Cady’s rationale. In that case, the police lawfully impounded a 

vehicle that was illegally parked. At the impound lot, an officer 

observed personal items in various parts of the car. The officer 

had lot personnel unlock the door and, using a standard inventory 

form, began recording the contents, including what was in the 

unlocked glove compartment. The officer found marijuana in the 
J-S14024-23

- 5 -

glove compartment and Opperman was charged with possession. 

The Opperman Court concluded that the search was reasonable 

as the police “were indisputably engaged in a caretaking search of 

a lawfully impounded automobile.” Id. at 375.... Like Cady, 

“there [was] no suggestion whatever that this standard procedure 

... was a pretext concerning an investigatory police motive.” Id.

at 376.... Based on Cady and other cases involving searches of 

vehicles that were impounded or otherwise in police custody, the 

Court determined that these types of searches are reasonable 

“where the process is aimed at securing or protecting the car and 

its contents.” Id. at 373....

Id. at 1108. 

Citing Commonwealth v. Lagenella, 83 A.3d 94 (Pa. 2013), the 

Thompson panel recognized that an inventory search is permissible only 

when “(1) the police have lawfully impounded the vehicle; and (2) the police 

have acted in accordance with a reasonable, standard policy of routinely 

securing and inventorying the contents of the impounded vehicle.” Id. at 

1101 (quoting Lagenella, 83 A.3d at 102).

Presently, Appellant argues that the first requirement has not been met, 

on the grounds that he was statutorily authorized to move his car within a 

reasonable time. See 75 Pa.C.S. § 3353(b)(1) (stating that an operator “shall 

arrange for the removal” of a disabled vehicle left unattended on private 

property without consent of owner); 75 Pa.C.S. § 7311.1(a)(1) (stating that 

vehicle remaining on property without consent of owner for more than 24 

hours may authorize the removal). Appellant avers that the trial court 

concluded that “impoundment is automatically permitted anytime a disabled 

car is involved,” which is inconsistent with the quoted statutes. Appellant’s 

Brief at 11. Appellant agrees that his car could be towed notwithstanding 
J-S14024-23

- 6 -

those statutes if it were obstructing traffic or otherwise presented a danger to 

public safety. Here, however, “Appellant’s car sat entirely off the roadway on 

a grassy area[.]” Id. In other words, there was no need for the officers to 

perform any kind of “community caretaking.”

Appellant argues that Lagenella, which held that a police officer could 

immobilize but not impound a vehicle, supports this position. There, an officer 

initiated a traffic stop and learned during the encounter that Lagenella’s 

license was suspended. After issuing citations, the officer informed Lagenella 

that the car would be towed since Lagenella was not permitted to drive. 

Lagenella told the officer that he had a friend who could remove the vehicle, 

but the officer informed him that this was not permitted by his department’s 

policy. The officer then, pursuant to that policy, inventoried the contents and 

discovered drugs. 

Our Supreme Court held that the impoundment was unlawful and the 

evidence must be suppressed. As the relevant statutory authority for 

impoundment, the Commonwealth cited 75 Pa.C.S. § 6309.2(a)(1), which

applies where the person’s “operating privilege is suspended,” and directs that 

“the law enforcement officer shall immobilize the vehicle ... or, in the interest 

of public safety, direct that the vehicle be towed and stored by the appropriate 

towing and storage agent....” The “towed and stored” language was equated 

to impoundment. The Court observed that, prior to a 2002 amendment, the 

statute used the term “impounding” instead of “towing and storage.” It was 

“unclear why the legislature chose to amend” the language, and the Court 
J-S14024-23

- 7 -

“discern[ed] no distinction between a vehicle which has been ‘impounded’ and 

one that has been ‘towed and stored.’” Lagenella, 83 A.3d at 100. Because 

Lagenella’s license was suspended, the officer by statute could only immobilize

the vehicle and did not have the authority to impound, unless it could be 

“towed and stored” for public safety reasons. 

Relevant to Appellant’s claim here, the Lagenella Court determined 

that this “public safety” condition was not met. Id. at 101. The Court declined 

to deem the impoundment lawful on that ground because the officer “offered 

no testimony indicating that [the] vehicle posed an issue of public safety.” Id. 

In fact, the officer agreed on cross-examination that Lagenella’s vehicle was 

not disabled or damaged. Id. Nor was there any indication that the parked 

vehicle impeded the flow of traffic. Finally, the Court rejected the 

Commonwealth’s argument that an “immobilized” vehicle is in the lawful 

custody of the police and may always be towed due to that custodial status.

Appellant argues that we must assess “whether ... immobilizing the 

vehicle would endanger public safety.” Appellant’s Brief at 20. Appellant 

submits that there is an absence of authority on this question in our appellate 

courts and asks this Court to follow Josey v. State, 981 S.W.2d 831 (Tex. 

App. 1998), which states that impoundment is permitted under Texas law “if 

police place the driver of the vehicle under custodial arrest and have no other 

alternatives available other than impoundment to insure protection of the 

vehicle.” Id. at 842. The Josey Court listed six non-exclusive factors to 

consider when determining whether an impoundment was justified. Appellant 
J-S14024-23

- 8 -

urges this Court to do the same. He insists that “[t]he totality of the 

circumstances must be examined.” Appellant’s Brief at 24. He cites several 

factors that, in his view, suggest that impoundment was not necessary to 

protect the public safety: his vehicle was entirely off the roadway; it was not 

blocking a sidewalk or pedestrian walkway; and there is no indication that the 

vehicle was likely to catch on fire or explode due to its damage. Id.

The Commonwealth argues in response that the lawful authority to 

impound did not derive from the statute analyzed in Lagenella. Instead, 

Section 3352(c)(3) of the Vehicle Code supplies statutory authority for the

impoundment in this case:

(c) Removal to garage or place of safety.--Any police officer 

may remove or cause to be removed to the place of business of 

the operator of a wrecker or to a nearby garage or other place of 

safety any vehicle found upon a highway under any of the 

following circumstances:

. . . .

(3) The person driving or in control of the vehicle is arrested 

for an alleged offense for which the officer is required by law 

to take the person arrested before an issuing authority 

without unnecessary delay.

75 Pa.C.S. § 3352(c)(3). The Commonwealth points out that the authorities 

arrested Appellant for the DUI as well as an outstanding arrest warrant. The 

Commonwealth argues that public safety was implicated in any event, as the 

vehicle was completely inoperable. 

We agree with the Commonwealth that the tow was statutorily 

authorized and decline to consider whether the tow was authorized for public 
J-S14024-23

- 9 -

safety.

3

 Beginning with Appellant’s argument that this Court should adopt a 

“no other alternatives available” test, Appellant does not specify whether this 

test should apply only if the tow was for public safety reasons, or whether it

applies even if the tow were authorized under Section 3352(c)(3).

4

 In 

addition, we note that the Texas decision cited by Appellant in support of the 

“no other alternatives available” test applied a long line of cases holding that 

the Texas Constitution offers greater protection than the Fourth Amendment. 

See Gords v. State, 824 S.W.2d 785, 787 (Tex. App. 1992) (“In ... an 

inventory search case, the Court of Criminal Appeals expressly held that the 

Texas courts, when analyzing and interpreting article I, section 9 of the Texas 

Constitution, will not be bound by United States Supreme Court cases 

addressing comparable fourth amendment issues.”). Appellant does not cite 

any authority for the proposition that Article I, Section 8 of the Pennsylvania 

Constitution offers greater protection than the Fourth Amendment in this 

situation. See Lagenella, 83 A.3d at 99 n.3 (“[F]or purposes of this appeal, 

____________________________________________

3 The Commonwealth, like Appellant, appears to assume that the “lawful 

impoundment” component of Opperman means that the impoundment must 

be authorized by statute. We accept that conclusion for purposes of this

appeal. However, we note that other courts have stated that a lawful seizure 

of a vehicle via impoundment can be justified by either statutory authorization 

or by the circumstances. For example, in State v. Hygh, 711 P.2d 264 (Utah 

1985), the Supreme Court of Utah explained that “lawful impoundment ... can 

be had either through explicit statutory authorization or by the circumstances 

surrounding the initial stop.” Id. at 268 (footnote omitted). The latter ability 

to impound “under the circumstances” appears to employ a totality-of-thecircumstances type test.

4 Appellant does not cite that statute and did not file a reply brief.
J-S14024-23

- 10 -

we find the Fourth Amendment and Article I, Section 8 to be coextensive.”). 

We recognize that, in Thompson, supra, this Court acknowledged that

aspects of the Alexander decision may support some limitations on the 

inventory search exception under our charter, but we ultimately declined to 

address such arguments: 

... Alexander may well support some limitations on the inventory 

search exception, as expressed by the dissenting Justices in 

Opperman[, 428 U.S.] at 392 ... (Marshall, J. dissenting) (arguing 

that, at minimum, an inventory search cannot take place if the car 

owner declines; “It is at least clear that any owner might prohibit 

the police from executing a protective search of his impounded 

car, since by hypothesis the inventory is conducted for the owner’s 

benefit.”); see also Colorado v. Bertine, 479 U.S. 367 ... (1987) 

(Marshall, J., dissenting) (noting that in Opperman the vehicle’s 

owner was not present when the vehicle was towed; “In this case, 

however, the owner was present to make other arrangements for 

the safekeeping of his belongings[.]”) (quotation marks and 

citation omitted). The Alexander Court’s rejection of the United 

States Supreme Court’s views on the privacy interests involved in 

an automobile may well support some limitations on the inventory 

search doctrine. See Bertine, 479 U.S. at 386 ... (“Not only are 

the government’s interests weaker here than in Opperman ... but 

respondent’s privacy interest is greater.”) (Marshall, J., 

dissenting). Here, however, [the a]ppellant argues that 

Alexander simply eliminated the inventory search exception in 

total. We thus have no occasion to address these types of 

arguments.

Thompson, 289 A.3d at 1110–11.

5

 

____________________________________________

5 The citation to Bertine warrants some brief additional discussion. Bertine 

had been arrested for DUI and his vehicle was towed pursuant to standard 

procedure. As one basis for deeming the inventory search unconstitutional, 

the Supreme Court of Colorado “expressed the view that the search in this 

case was unreasonable because Bertine’s van was towed to a secure, lighted 

facility and because Bertine himself could have been offered the opportunity 
J-S14024-23

- 11 -

Thus, Appellant’s argument that we should follow Texas law amounts to 

an argument that this Court should read Article I, Section 8 more extensively 

than the Fourth Amendment. However, Appellant did not present such an 

argument below. Consequently, we decline to conclude that the officers were 

required to determine whether more reasonable alternatives existed in lieu of 

impoundment that was authorized by statute. See Commonwealth v. 

Bishop, 217 A.3d 833, 841 (Pa. 2019) (holding that claim arguing for 

departure under Pennsylvania Constitution was waived for failing to develop 

it at trial court level). 

Having rejected the “no other alternative” argument, we agree with the

Commonwealth that Section 3352(c)(3) establishes a basis for the tow. As a 

result, the evidence would have been inevitably discovered due to the 

departmental policy to perform an inventory search pursuant to a tow. See 

Commonwealth v. Bailey, 986 A.2d 860, 863 (Pa. Super. 2009) (citing 

Section 3352(c)(3) as basis for tow; “Because the police ... conduct routine 

inventory searches whenever a car is towed, and an inventory search includes 

looking into obvious storage places such as the center console, we must agree 

____________________________________________

to make other arrangements for the safekeeping of his property.” Bertine, 

479 U.S. at 373. The Court disagreed, because the reasonableness of 

governmental activity “does not necessarily or invariably turn on the existence 

of alternative ‘less intrusive’ means.” Id. at 374 (citation omitted). The Texas 

Court of Appeals decision in Gords declined to follow Bertine. “Bertine is 

not binding on this Court on State constitutional issue; it is only permissive 

authority.” Gords, 824 S.W.2d at 787. 
J-S14024-23

- 12 -

that the gun would have inevitably been discovered absent police error or 

misconduct.”).

6

 To the extent that Appellant argues police officers are 

____________________________________________

6 The following discussion occurred at the suppression hearing concerning 

Moon Township’s towing policy:

Q. When towing a car, do you have any standard procedures on 

how you handle that car before it’s taken by the tow company?

[APPELLANT]: Objection. Your Honor, best evidence for any tow 

policy, would be a copy of the actual tow policy, not the witness’s 

recollection.

THE COURT: He can ask if there is one. Maybe there is not one. 

Q. Is there a tow policy?

A. We do have a policy. Again it depends on whether we’re 

impounding the car.

[APPELLANT]: Your Honor, I would just object to this testimony 

and ask directly, the best evidence for the tow policy itself would 

be the actual tow policy.

THE COURT: Do you have a tow policy?

THE WITNESS: Yes and no. It depends on the policy. For 

crashes[,] it’s a little different than if we’re impounding the vehicle 

for law enforcement purposes. This was simple: There’s been a 

crash, tow the vehicle to get it to safety.

THE COURT: So is there a policy for that?

THE WITNESS: Specifically, as far -- not a specific policy.

THE COURT: Is there a practice?

THE WITNESS: Yes. But the practice is, we call the tow of the 

month if the person doesn’t have a specific tow they would want 

to use. And in this specific instance, we may look through the car 

to make sure that there’s nothing that could hurt the tow-truck 

driver.
J-S14024-23

- 13 -

required to pursue other alternatives even under that statute in cases where 

the vehicle does not otherwise pose a danger to public safety, we conclude 

that this argument implicates whether Article I, Section 8 should be read to 

provide more protection than the Fourth Amendment. Appellant did not raise 

that argument below and, thus, we find that it is waived. Bishop, 217 A.3d 

at 841.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/7/2023

____________________________________________

N.T., 3/17/22, at 30-31. 

We agree with Appellant’s comments at argument that a written policy 

is preferred, as the Commonwealth must establish the existence of a towing 

policy to justify an inventory search. In Bailey, President Judge Emeritus 

McEwen filed a concurring opinion noting that the Commonwealth did not 

produce a written policy. He joined the opinion, however, because “the 

arresting officer testified, without contradiction or rebuttal, that [the] car 

‘would have been towed’ and ‘an inventory search[’]” would have occurred. 

Bailey, 986 A.2d at 863-64 (McEwen, P.J.E., concurring). In the case sub 

judice, the officer referenced the existence of a policy, while also stating there 

is not a specific policy, and also referenced “practices” for certain scenarios 

(presumably those not covered by the policy). Nevertheless, as in Bailey,

the testimony that the car would have been towed and inventoried as a matter 

of policy was not contradicted. 
J-S14024-23

- 14 -