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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA

v.

LARRY CRAIG RICHARDSON, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1291 WDA 2016

Appeal from the Judgment of Sentence July 19, 2016

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

No(s): CP-02-CR-0008374-2015

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

DISSENTING MEMORANDUM BY OLSON, J.: FILED: March 29, 2019

I respectfully dissent from the learned majority. Although I would 

vacate Appellant’s judgment of sentence and remand for resentencing, I would 

affirm Appellant’s convictions. 

On appeal, Appellant primarily contends that the trial court erred when 

it denied his motion to suppress. Because the Commonwealth prevailed at 

the suppression hearing, we “consider only the Commonwealth’s evidence and 

so much of the evidence for the defense as remains uncontradicted when read 

in the context of the record as a whole.” Commonwealth v. Russo, 934 

A.2d 1199, 1203 (Pa. 2007) (quotations and citations omitted). Further, as 

to this issue, “the record” refers to “the evidentiary record that was created 

at the suppression hearing.” Commonwealth v. Cruz, 166 A.3d 1249, 1254 

(Pa. Super. 2017); In re L.J., 79 A.3d 1073 (Pa. 2013). Viewed in this 

manner, the evidence is as follows.
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On the afternoon of April 3, 2015, officers from the Ross Township Police 

Department were surveilling Appellant’s residence at 167 North South Drive

in Ross Township. N.T. Suppression Hearing, 1/21/16, at 5-7. Appellant’s 

residence was located in an apartment complex known as “the Cascades,”

which is entered from a road named Cemetery Lane. Id. at 5, 23, and 73-74. 

The officers were conducting their surveillance because they believed 

Appellant was selling narcotics. Id. at 5-7 and 42. The officers did not 

possess a warrant to search Appellant’s property or for Appellant’s arrest; 

however, earlier in the day, the officers confirmed that Appellant’s driver’s 

license was suspended, as Appellant had been convicted of driving under the 

influence (“DUI”). Id. at 5-6, 43, and 71-72.

1

At approximately 2:00 p.m. that day, Police Officer Balazas Devenyi

watched Appellant leave his apartment holding a black cloth bag, get into his 

vehicle alone, and drive away. Id. at 6. Officer Devenyi “relayed [this]

information [to] the other officers on the detail,” which included Police Officer 

Mark Sullivan and Detective Jason Moss. Id. at 8 and 12.

At the time, Officer Sullivan was in uniform and driving a marked police 

car on Cemetery Lane. Id. at 16. Officer Sullivan testified that, at 

approximately 2:00 p.m., he received a radio call from Detective Moss, 

____________________________________________

1 Ross Township Police Detective Jason Moss testified that, at 11:03 a.m. on 

April 3, 2015, he received confirmation that Appellant had a suspended 

driver’s license. N.T. Suppression Hearing, 1/21/16, at 43. However, 

Detective Moss testified that he “knew back on March 17 that [Appellant] 

wasn’t permitted to legally drive.” Id. at 70.
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declaring “that there was a gentleman driving a . . . silver Range Rover . . . 

with a suspended [license]” and that the vehicle was “driving up Cemetery 

Lane.” Id. at 16-17. Officer Sullivan informed Detective Moss that he would 

attempt to stop the vehicle. Id. at 17-18. 

Officer Sullivan observed Appellant’s vehicle a “[c]ouple minutes” later. 

As Officer Sullivan testified:

I travel up Cemetery Lane and we were stopped at the red 

light where it intersects with Perry Highway, and a couple 

cars ahead of me I observe a Range Rover. As we proceed 

through the red light, the other cars in front of us turned off. 

I was directly behind the Range Rover. I observed the license 

as [Detective] Moss had informed me over the radio. . . . 

[M]aybe 15 seconds after we started moving[,] I initiated a 

traffic stop. . . . I turned my lights and sirens on. At that 

point[,] the Range Rover turned left onto the ramp [leading 

down to Interstate 279] and then pulled over to the side[, 

coming to a rest on the berm of the Interstate 279 on-ramp].

Id. at 18 and 20.

As Officer Sullivan testified, Appellant stopped his vehicle “most of the 

way off the road out of the lane of travel on the ramp down to [Interstate] 

279. His car was two-thirds off the lane of travel onto the berm of the road.” 

Id. at 21. However, Appellant’s vehicle was “still parked in the lane of travel”

and, as Detective Moss testified, Appellant’s vehicle posed “a safety hazard to 

other motorists who [were] operating their vehicle on this roadway.” Id. at 

21 and 48.
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When the vehicles came to a stop, Detective Moss arrived on scene in a 

separate, unmarked vehicle and parked behind Officer Sullivan’s patrol car.2 

Id. at 46. Officer Sullivan and Detective Moss then approached Appellant’s 

vehicle. Id. at 21. As Detective Moss testified:

I asked [Appellant] if he had a good license. He said that he 

did. I obtained his license. I informed him he was DUI 

suspended and I asked him to step from the vehicle. . . . 

[After Appellant stepped out of the vehicle,] I confirmed that 

his license was suspended for DUI and [told him] we would 

need to tow his vehicle.

Id. at 48-49.

Detective Moss testified that he did not (and could not) arrest Appellant 

for driving with a suspended license.

3

 Id. at 102-103. Rather, Detective Moss 

____________________________________________

2 Detective Moss testified that he did not stop Appellant’s vehicle because he 

was driving an unmarked police car and he wished for “the marked police 

vehicle [to] stop” Appellant. N.T. Suppression Hearing, 1/21/16, at 76 and 

108 (Detective Moss testified that it is his “preference to have a marked patrol 

vehicle [] conduct a traffic stop”).

3 Appellant’s license was suspended because he was convicted of DUI. 

Section 1543(b)(1) of the Vehicle Code declares that it is a summary offense 

to “drive[] a motor vehicle on a highway . . . of this Commonwealth at a time 

when the person’s operating privilege is suspended or revoked . . . because 

of a violation of . . . [75 Pa.C.S.A. §] 3802” (related to driving under the 

influence of alcohol or controlled substances). 75 Pa.C.S.A. § 1543(b)(1). 

Section 6304 of the Vehicle Code, entitled “[a]uthority to arrest without 

warrant,” declares:

(a) Pennsylvania State Police.--A member of the 

Pennsylvania State Police who is in uniform may arrest 

without a warrant any person who violates any provision of 

[the Vehicle Code] in the presence of the police officer 

making the arrest.
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testified that he intended to issue Appellant a citation for the infraction and 

then, “if it was legally possible,” tow the vehicle. Id. Further, while Detective 

Moss testified that the police stopped Appellant because he was driving with 

a suspended license, Detective Moss testified that the police also “hope[d to] 

find drugs on him at that time.” Id. at 71.

As Detective Moss testified on direct examination, after being informed 

that the police were going to tow his vehicle: “[Appellant] asked if somebody 

could come and move the vehicle. I asked if they were at Cemetery Lane. He 

indicated they were not. So I deemed that the person wouldn’t be there within 

a reasonable amount of time.” Id. at 48-49. Detective Moss immediately 

clarified that, when he asked Appellant whether “they were at Cemetery 

____________________________________________

(b) Other police officers.--Any police officer who is in 

uniform may arrest without a warrant any nonresident who 

violates any provision of [the Vehicle Code] in the presence 

of the police officer in making the arrest.

(c) Other powers preserved.--The powers of arrest 

conferred by this section are in addition to any other powers 

of arrest conferred by law.

75 Pa.C.S.A. § 6304. Officers from the Ross Township Police Department 

effected the stop of Appellant’s vehicle. Moreover, the evidence is 

uncontradicted that Appellant was a resident of Pennsylvania and that he lived 

at 167 North South Drive, in Ross Township. See, e.g., N.T. Suppression 

Hearing, 1/21/16, at 6. Therefore, Detective Moss was correct to declare that 

he could not arrest Appellant for violating Section 1543(b)(1) of the Vehicle 

Code and that the proper procedure was to merely issue Appellant a citation 

for the violation. Id. at 103 (Detective Moss testified: “We can’t arrest 

[Appellant] for [driving with a suspended license]. He’s cited and pulled 

over”). 
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Lane,” Detective Moss was asking Appellant whether “there would be someone 

available at [Appellant’s] residence to move the vehicle.” Id. at 50. When 

Appellant answered “no,” Detective Moss “didn’t pursue it any further . . . 

[b]ecause [Detective Moss] deemed that nobody was in close proximity to 

move that vehicle.” Id.

However, during cross-examination, Detective Moss partially altered his 

testimony on this issue. Specifically, Detective Moss testified that, after he 

informed Appellant that the police were going to tow the vehicle, Appellant 

said “[c]an my girl or somebody come get it?” Id. at 86. Detective Moss 

testified that, in response, he asked Appellant “[a]re they close?;” when 

Appellant replied “no,” Detective Moss ended the conversation. Id. at 85-86. 

During his testimony, Detective Moss acknowledged the Ross Township 

Vehicle Tow Policy and Traffic Enforcement Policy. In fact, Detective Moss 

testified that he was attempting to follow the policies during his interaction 

with Appellant. Id. at 52. In relevant part, the policies declare:

TITLE III OPERATIONS:

Chapter 9 Vehicle Tow Policy

POLICY:

Incidents often require officers to order that vehicles be 

towed from the scene and stored by contract towers. The 

reasons and circumstances of these tows are many and 

varied. Often times, these tows are ordered against the 

wishes of the vehicle driver or owner.

This policy is intended to regulate the circumstances 

under which a vehicle is towed at the direction of the 

department, the procedures for requesting tows under 
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various conditions, and guidelines to be followed for placing 

holds and conducting inventories.

PROCEDURE:

901 Reason to Tow

. . .

F) Traffic Violations

(1) Vehicles may be removed from the scene and 

stored by contract tower following enforcement action 

pursuant to the criteria set forth in Title III Chapter 

14 Traffic Enforcement.

. . .

904 Inventory of Towed Vehicles

A) Inventories Required

(1) All vehicles towed at the direction of department’s 

officers shall be inventoried.

(2) Inventories are the responsibility of the officer 

requesting, or ordering, the vehicle to be towed. He 

may delegate this responsibility to another officer.

B) Method of Inventory

(1) Officers shall inventory the contents of all 

occupant and cargo spaces that are accessible.

(2) In performing inventory searches, no locked or 

sealed container shall be forced open.

. . .

(4) Items of significant monetary value shall warrant 

a more detailed description including, but not limited 

to, make, model, size, serial numbers, and condition.
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(5) Inventory shall include a description of the interior 

and exterior of the vehicle with particular notation of 

any visible damage.

C) Inventory Report

(1) Results of inventory shall be documented on the 

department’s Inventory Report form.

(2) Any articles removed from the vehicle after the 

vehicle has come under the control of the department 

shall be noted on the Inventory Report, including 

whom the article was released to. . . . 

. . . 

(4) All completed reports shall be submitted to the 

Records Division within 24 hours. Officers may copy 

the completed report for inclusion in case or 

investigative files.

. . .

Chapter 14 Traffic Enforcement

. . .

1402 Enforcement Options

F) Disposition of Vehicles

(1) If, as a result of enforcement action, the officer[] 

finds that a driver is not legally permitted to drive a 

vehicle on a highway, the officer may:

(a) Permit the driver to arrange for another person 

to drive the vehicle. RESTRICTION: The maximum 

time allotted for removal of a vehicle on the 

roadway by another person shall be 20 minutes.

. . .

(c) If the vehicle is not on the roadway, the driver 

may be permitted to arrange to have the vehicle 
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towed from the location. RESTRICTION: The 

maximum time allotted for removal by private 

tower shall be 20 minutes.

. . .

(e) If the vehicle is on the roadway, and driver is 

unable to comply with (a), the vehicle shall be 

removed at the officer’s direction by contract 

tower.

Ross Township Vehicle Tow Policy and Traffic Enforcement Policy, at 1-20.

Detective Moss testified that, pursuant to Section 1402(F)(1)(a) of the 

Ross Township Traffic Enforcement Policy, “in a situation where a vehicle must 

be towed because the operator doesn’t have a license,” “we would always” 

ask the operator whether there was “anyone who was able to come get the 

car within 20 minutes.” N.T. Suppression Hearing, 1/21/16, at 86. Detective 

Moss testified that he did not specifically ask Appellant “[i]s there anybody 

who can get here in 20 minutes?” Id. at 85-86. However, Detective Moss 

testified that, in this case, he did not need to ask the question because 

Appellant had already confirmed that there was no one “close” who could come 

get the car – and, Detective Moss testified, he deemed this answer to mean 

that there was no one who could pick up Appellant’s vehicle “within that 

20-minute time frame.” Id.

As Detective Moss testified, pursuant to policy, as soon as the police

determine that a vehicle is going to be towed, the police are required to 
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perform an inventory search of the entire vehicle before the vehicle is towed.4

Id. at 90; see also Ross Township Vehicle Tow Policy at § 904(A) and (B). 

He testified:

That is the policy. You have to inventory the vehicle to 

protect ourselves and the tower of potential liability of items 

of value are in the car and are potentially stolen either by us 

or the tower. So we cover ourselves and document 

everything of value in the vehicle. . . . [T]he parameters of 

the inventory . . . excludes any locked container. But other 

than that, it spells out that you are to inventory the entire 

vehicle.

N.T. Suppression Hearing, 1/21/16, at 54.

Detective Moss testified that it is his standard procedure to inventory 

the vehicle by, first, either memorizing the contents of the vehicle or “writ[ing 

the contents] in [his] notebook” prior to the tow; Detective Moss testified that 

he then completes a standard inventory form “when [he] get[s] back to the 

station.” Id. at 89. 

Detective Moss testified that, after he determined that Appellant’s 

vehicle was to be towed, he began the inventory search. Id. at 87. As 

Detective Moss testified, “in conducting the inventory search, the first thing 

that [he] did was go into [Appellant’s] car and take the black bag” that the 

police saw Appellant carry from his residence into his car. Id. Detective Moss 

____________________________________________

4

In accordance with Ross Township Vehicle Tow Policy Section 904, Detective 

Moss testified that he is required to “inventory the entire vehicle[,] . . . 

exclud[ing] any locked container.” N.T. Suppression Hearing, 1/21/16, at 54. 

Appellant’s black cloth bag was closed by a drawstring and was not locked. 

Id. at 55. 
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testified that he chose to inventory the black bag first because “[t]o me it was 

the first logical thing to look for.” Id. at 87. He testified: “I entered the 

vehicle and on his passenger side seat was a black drawstring bag. I 

manipulated that bag. When I looked in it, I saw several bricks of heroin.” 

Id. at 55. At that point, Detective Moss “stopped the inventory . . . [so that 

he could] obtain a search warrant and search the rest of the vehicle for further 

narcotics” and arrested Appellant. Id. at 56. 

The vehicle was towed to the police station and a search warrant was

later issued for Appellant’s vehicle and residence. Id. at 58. Appellant’s 

vehicle was later “searched pursuant to the search warrant.” Id. at 60. In 

total, the police discovered: approximately 1,250 stamp bags of heroin and 

nine-and-a-half grams of crack cocaine in the black drawstring bag; $1,262.00

on Appellant’s person; and, $18,212.00 at Appellant’s residence. Id. at 62-

63. 

The Commonwealth charged Appellant with two counts of possession of 

a controlled substance with the intent to deliver (hereinafter “PWID”), two 

counts of possession of a controlled substance, and one count of driving while 

operating privilege is suspended.

5

 Prior to trial, Appellant filed a motion to 

suppress the evidence against him. Appellant claimed that all of the evidence 

against him must be suppressed, as the evidence was the product or fruit of 

____________________________________________

5 35 P.S. § 780-113(a)(30) and (16) and 75 Pa.C.S.A. § 1543(b)(1), 

respectively.
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an unconstitutional impoundment and search of his vehicle. Appellant’s 

Suppression Motion, 9/23/15, at 1-6. After hearing the above-summarized 

evidence, the trial court denied Appellant’s motion to suppress. Within its 

later-filed opinion, the trial court declared:

The record clearly shows that [Appellant] was driving a 

vehicle when his driver’s license was suspended. Officer 

Sullivan conducted a valid traffic stop to cite [Appellant] for 

violating the vehicle code. Consistent with departmental 

policy, [Appellant] was provided with an opportunity to have 

a local associate retrieve his vehicle. When [Appellant] 

advised the officers that nobody was available to retrieve the 

vehicle, [Detective] Moss sought to have the vehicle towed 

as it was occupying the side of the road on the entry lane to 

a busy interstate highway. [Detective] Moss dutifully took all 

necessary steps to remove a safety hazard from the roadway. 

[The trial court] believes that [Detective] Moss’s conduct was 

consistent with departmental policy. Moreover, pursuant to 

this same policy, [Detective] Moss was required to conduct 

an inventory search to protect [Appellant’s] property as well 

as protect himself and others acting on behalf of the 

government from any risks associated with the care-taking of 

[Appellant’s] property. The inventory search was, therefore, 

proper.

Trial Court Opinion, 6/22/17, at 5 (emphasis omitted).

On March 31, 2016, Appellant proceeded to a stipulated, non-jury trial. 

The trial court found Appellant guilty of all charged crimes and, on July 19, 

2016, the trial court sentenced Appellant to serve an aggregate term of 60 to 

120 months in prison, followed by five years of probation, for his convictions. 

N.T. Sentencing, 7/19/16, at 30-32. The trial court denied Appellant’s 

post-sentence motion on August 1, 2016 and Appellant filed a timely notice of 

appeal. Appellant raises two issues on appeal:
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[1.] Did the trial court err in denying [Appellant’s] 

suppression motion because police conducted the search for 

criminal investigatory, rather than non-criminal inventory, 

purposes?

[2.] Did the trial court issue a manifestly excessive and 

unreasonable sentence that failed to properly consider and 

apply all of the relevant sentencing criteria, including the 

protection of the public, the gravity of the offense, and 

[Appellant’s] character and rehabilitative needs, as required 

under 42 Pa.C.S.A. § 9721(b) (sentencing generally)[?]

Appellant’s Brief at 5.

Appellant first claims that the trial court erred when it denied his 

suppression motion. 

“Once a motion to suppress evidence has been filed, it is the 

Commonwealth’s burden to prove, by a preponderance of the evidence, that 

the challenged evidence was not obtained in violation of the defendant’s 

rights.” Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa. Super. 

2012) (en banc); see also Pa.R.Crim.P. 581(H). With respect to an appeal 

from the denial of a motion to suppress, our Supreme Court has declared:

Our standard of review in addressing a challenge to a trial 

court’s denial of a suppression motion is whether the factual 

findings are supported by the record and whether the legal 

conclusions drawn from those facts are correct. When 

reviewing [such a ruling by the] suppression court, we must 

consider only the evidence of the prosecution and so much of 

the evidence of the defense as remains uncontradicted when 

read in the context of the record. . . . Where the record 

supports the findings of the suppression court, we are bound 

by those facts and may reverse only if the legal conclusions 

drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations 

omitted).
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Appellant claims that the trial court erred when it denied his motion to 

suppress. According to Appellant, the inventory search of his vehicle was

“unconstitutional because [the] police conducted [the search] to investigate 

the contents of the vehicle for evidence of a crime rather than to safeguard 

[the contents] from subsequent claims of lost, damaged[,] or stolen 

property.”6 Appellant’s Brief at 23. Specifically, Appellant claims that the 

inventory search was unconstitutional because, in conducting the search, the 

police harbored a “criminal investigatory motive.” Id. at 26. Further, 

Appellant claims that, since the search of his vehicle was unconstitutional, all 

of the evidence against him must be suppressed, as it was the product or the

fruit of the initial, unconstitutional search. Id. at 22-37.

“The Fourth Amendment to the [United States] Constitution and Article 

I, Section 8 of [the Pennsylvania] Constitution protect citizens from 

____________________________________________

6 On appeal, Appellant claims only that the purported inventory search of his 

vehicle was unconstitutional; Appellant does not claim that the impoundment 

of his vehicle was invalid or unconstitutional. See Appellant’s Brief at 5 and 

22-37. Further, Appellant does not claim that the initial stop of his vehicle 

was improper. See id. Indeed, Appellant recognizes that the initial stop was 

proper, as the officers had probable cause to believe that he was driving a 

vehicle while his operating privilege was suspended, in violation of 75 

Pa.C.S.A. § 1543(b)(1). See id.; see also N.T. Suppression Hearing, 

1/21/16, at 64-67 (Appellant acknowledges that the initial stop was valid); 

Whren v. United States, 517 U.S. 806 (1996) (holding: “the constitutional 

reasonableness of traffic stops [does not] depend[] on the actual motivations 

of the individual officers involved. . . . Subjective intentions play no role in 

ordinary, probable cause Fourth Amendment analysis”).
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unreasonable searches and seizures.”7 Commonwealth v. McAdoo, 46 

A.3d 781, 784 (Pa. Super. 2012). “A search conducted without a warrant is 

deemed to be unreasonable and therefore constitutionally impermissible, 

unless an established exception applies.” Commonwealth v. Strickler, 757 

A.2d 884, 888 (Pa. 2000). Some exceptions to the warrant requirement apply 

where “the police have probable cause to believe a crime has been or is being 

committed.” Commonwealth v. Petroll, 738 A.2d 993, 998-999 (Pa. 1999);

United States v. Rabinowitz, 339 U.S. 56 (1950) (search incident to arrest

exception); Commonwealth v. Gibson, 638 A.2d 203, 206-207 (Pa. 1994)

(exigent circumstances exception); Commonwealth v. Gary, 91 A.3d 102 

(Pa. 2014) (automobile exception). However, “[e]ven absent probable cause, 

some searches without warrants do not violate state or federal constitutional 

privacy rights.” Petroll, 738 A.2d at 999. The latter category includes 

searches and seizures conducted while the police are acting as community 

____________________________________________

7 Appellant grounds his claim on appeal entirely in the Fourth Amendment to 

the United States Constitution; Appellant raises no separate claim for relief 

under the Pennsylvania Constitution and Appellant does not “argue that the 

Pennsylvania Constitution offers greater protection [from inventory searches] 

than does the United States Constitution.” See Commonwealth v. Baker, 

78 A.3d 1044, 1048 (Pa. 2013); see also Appellant’s Brief at 22-37. 

Therefore, in analyzing Appellant’s claim, I do not separately analyze the claim 

under the Pennsylvania Constitution. See Baker, 78 A.3d at 1048 (holding 

that, where the “[a]ppellant [did] not argue that the Pennsylvania Constitution 

offers greater protection against cruel punishments than does the United 

States Constitution,” the Supreme Court would “not engage in a separate state 

constitutional review” of the claim); Commonwealth v. Wilmer, 194 A.3d 

564, 565 n.1 (Pa. 2018) (same).
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caretakers. See Commonwealth v. Livingstone, 174 A.3d 609, 625-626 

(Pa. 2017). 

“The community caretaking doctrine has been characterized as 

encompassing three specific exceptions: the emergency aid exception; the 

automobile impoundment/inventory exception; and the public servant 

exception, also sometimes referred to as the public safety exception.” Id. at 

626-627. With respect to the inventory search exception, our Supreme Court 

has held:

The purpose of an inventory search is not to uncover criminal 

evidence, but to safeguard items taken into police custody in 

order to benefit both the police and the defendant. In the 

seminal case of [South Dakota v. Opperman, 428 U.S. 364 

(1976)], the [United States Supreme] Court observed that 

inventory searches of impounded vehicles serve several 

purposes, including (1) protection of the owner’s property 

while it remains in police custody; (2) protection of the police 

against claims or disputes over lost or stolen property; (3) 

protection of the police from potential danger; and (4) 

assisting the police in determining whether the vehicle was 

stolen and then abandoned. 

An inventory search of an automobile is permissible 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. In Commonwealth v. Henley, the 

Pennsylvania Superior Court, citing Opperman, explained:

In determining whether a proper inventory search has 

occurred, the first inquiry is whether the police have 

lawfully impounded the automobile, i.e., have lawful 

custody of the automobile. The authority of the police to 

impound vehicles derives from the police’s reasonable 

community care-taking functions. Such functions include 

removing disabled or damaged vehicles from the 

highway, impounding automobiles which violate parking 
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ordinances (thereby jeopardizing public safety and 

efficient traffic flow), and protecting the community’s 

safety.

The second inquiry is whether the police have conducted 

a reasonable inventory search. An inventory search is 

reasonable if it is conducted pursuant to reasonable 

standard police procedures and in good faith and not for 

the sole purpose of investigation.

909 A.2d 352, 359 (Pa. Super. 2006) (en banc) (citations 

omitted). A protective vehicle search conducted in 

accordance with standard police department procedures 

assures that “the intrusion [is] limited in scope to the extent 

necessary to carry out the caretaking function.” Opperman, 

428 U.S. at 375.

Commonwealth v. Lagenella, 83 A.3d 94, 102-103 (Pa. 2013) (some 

citations omitted); see also Colorado v. Bertine, 479 U.S. 367, 372 (1987) 

(holding that a vehicle inventory search was valid and declaring that “there 

was no showing that the police, who were following standardized procedures, 

acted in bad faith or for the sole purpose of investigation”).

On appeal, Appellant claims that the inventory search was 

unconstitutional because, in conducting the search, the police harbored a 

criminal investigatory motive and the inventory search was merely a pretext 

for an unconstitutional, warrantless investigatory search of the black bag. See

Appellant’s Brief at 23 and 34. The majority agrees with Appellant and holds 

that an officer’s “mixed motives” will invalidate an otherwise permissible 

inventory search. See Majority Opinion at **24-25. Respectfully, I believe 

that the majority’s holding is incorrect.
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At the outset, I acknowledge the precedent from this Court holding that

an inventory search is invalid where the search was “coupled with the intent 

of discovering evidence of a crime.” See Commonwealth v. Brandt, 366 

A.2d 1238, 1241 (Pa. Super. 1976) (holding: “[a]n inventory takes place when 

it is not coupled with the intent of discovering evidence of a crime”); 

Commonwealth v. Landamus, 482 A.2d 619, 622 (Pa. Super. 1984) 

(same); Commonwealth v. Corbin, 469 A.2d 615, 616-617 (Pa. Super. 

1983) (plurality) (declaring that trial counsel was ineffective for failing to file 

a motion to suppress because, even though the police possessed an 

objectively valid reason to impound the defendant’s vehicle, the purported 

inventory search was unconstitutional because the police harbored “an 

investigatory [] motive”); see also Commonwealth v. Germann, 621 A.2d 

589, 594 (Pa. Super. 1993) (“an inventory search is only excepted from the 

warrant requirement or probable cause where it is motivated by a desire to 

safeguard the contents of the vehicle, and not by a design to uncover 

incriminating evidence”) (footnote omitted). In other words, this Court has 

held that an officer’s “mixed motives” invalidate an objectively valid inventory 

search. Indeed, Appellant has based his entire argument on appeal from these 

cases and this precedent. See Appellant’s Brief at 22-37; Appellant’s Reply 

Brief at 3-13.

I also note that the above precedent was based upon statements from 

the United States Supreme Court, wherein the High Court suggested that the 

mixed motivations of individual officers might invalidate “a search conducted 
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in the absence of probable cause” – such as searches conducted pursuant to 

the community caretaking doctrine. Whren, 517 U.S. at 811-812 (emphasis 

omitted); see also Cady v. Dombrowski, 413 U.S. 433, 441 (1973) (noting 

that police officers “engage in . . . community caretaking functions, totally 

divorced from the detection, investigation, or acquisition of evidence relating 

to the violation of a criminal statute”); South Dakota v. Opperman, 428 

U.S. 364, 375-376 (1976) (upholding vehicle impoundment and inventory 

search because the police followed a standard procedure and “there [wa]s no 

suggestion whatever that this standard procedure, essentially like that 

followed throughout the country, was a pretext concealing an investigatory 

police motive”); New York v. Berger, 482 U.S. 691, 716 n.27 (1987) (in 

upholding a “warrantless search of an automobile junkyard, conducted 

pursuant to” the administrative inspection exception, the Court declared: 

“[t]here is . . . no reason to believe that the instant inspection was actually a 

‘pretext’ for obtaining evidence of respondent's violation of the penal laws”);

Whren, 517 U.S. at 811-812 (declaring that the Court’s statements in 

Bertine and Burger “simply explain that the exemption from the need for 

probable cause (and warrant), which is accorded to searches made for the 

purpose of inventory or administrative regulation, is not accorded to searches 

that are not made for those purposes”).

Nevertheless, as the United States Supreme Court has explained, 

“Fourth Amendment reasonableness is predominantly an objective inquiry.” 
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Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011) (quotations and citations 

omitted) (emphasis added). Thus, generally, 

[the United States Supreme Court] ask[s] whether the 

circumstances, viewed objectively, justify the challenged 

action. If so, that action was reasonable whatever the 

subjective intent motivating the relevant officials. This 

approach recognizes that the Fourth Amendment regulates 

conduct rather than thoughts and it promotes evenhanded,

uniform enforcement of the law.

Id. at 736-737 (quotations, citations, and corrections omitted).

This pure objective-based approach gives way in “limited contexts such 

as an inventory search or administrative inspection” – where an officer’s 

subjective motivation may “invalidate[] objectively justifiable behavior under 

the Fourth Amendment.” Kentucky v. King, 563 U.S. 452 (2011) (citations

and quotations omitted). The question in our case is: when and at what level 

does an officer’s subjective motivation invalidate that officer’s “objectively 

justifiable behavior”? I believe that the Pennsylvania Supreme Court’s recent 

opinion in Livingstone sheds light on the answer to this question. In 

Livingstone, the Supreme Court held, in the context of the community 

caretaking doctrine’s “public servant exception”: “in a community 

caretaker context, when under the totality of the circumstances an 

objectively reasonable basis for the community caretaker function is 

shown, that determination is not negated by the officer's subjective 

law enforcement concerns . . . [and that,] so long as a police officer is able 

to point to specific, objective, and articulable facts which, standing alone, 
J-A02016-18

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reasonably would suggest that his assistance is necessary, a coinciding 

subjective law enforcement concern by the officer will not negate the 

validity of that search under the public servant exception to the 

community caretaking doctrine.” Livingstone, 174 A.3d at 636-637

(emphasis added) (citations and quotations omitted).

In Livingstone, Pennsylvania State Trooper Jeremy Frantz was on duty 

and driving his marked police cruiser when he saw a vehicle stopped on the 

shoulder of Interstate 79; the vehicle’s “engine was running, but the hazard 

lights were not activated.” Id. at 614. Trooper Frantz “activated his 

emergency lights and, with his passenger window down, pulled alongside the 

stopped vehicle.” Id. The trooper looked into the vehicle’s window and saw 

Victoria Livingstone sitting in the driver’s seat with “glossy eyes” and a 

“hundred mile stare.” Id. After speaking to Ms. Livingstone and observing 

other signs of intoxication, Trooper Frantz arrested Ms. Livingstone. A 

subsequent blood test revealed that Ms. Livingstone had a blood alcohol 

content (“BAC”) in excess of the legal limit. Id.

Ms. Livingstone filed a motion to suppress the results of her BAC test,

claiming that it was the fruit of an unconstitutional seizure. The trial court 

denied the motion because “Trooper Frantz, after observing [Ms. 

Livingstone’s] vehicle on the side of the interstate, had a duty to determine 

whether [she] was in need of assistance, and his act of approaching [her] 

vehicle with his overhead emergency lights was a mere encounter.” Id. at 

615 (quotations omitted). 
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After Ms. Livingstone was convicted of DUI, she appealed to this Court 

and we affirmed her judgment of sentence. The Pennsylvania Supreme Court 

granted Ms. Livingstone’s petition for allowance of appeal and reversed our 

order. Id. at 638.

Initially, the Livingstone Court held that, “when Trooper Frantz pulled 

alongside [Ms. Livingstone’s] vehicle, with his emergency lights activated, 

[Ms. Livingstone] was subjected to an investigative detention.” Id. at 619.

Since this initial seizure was not supported by reasonable suspicion or 

probable cause, the Supreme Court next had to determine whether the seizure 

was valid under the public servant exception to the warrant requirement. Id.

at 619-620.

The Court began its analysis by noting that the “community caretaking 

doctrine” encompasses three exceptions to the warrant requirement: “the 

emergency aid exception; the automobile impoundment/inventory exception; 

and the public servant exception.” Id. at 626-627. The Court declared that 

each of the three exceptions “contemplates that the police officer’s actions will 

be motivated by a desire to render aid or assistance, rather than the 

investigation of criminal activity.” Id. at 627. After conducting a 50-state 

survey of the public servant exception, the Court held that, in Pennsylvania,

the applicability of the public servant exception depends upon three essential 

factors: 

[1)] the officer must point to specific, objective, and 

articulable facts which would reasonably suggest to an 

experienced officer that assistance was needed; [2)] the 
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police action must be independent from the detection, 

investigation, and acquisition of criminal evidence; and, [3)] 

based on a consideration of the surrounding circumstances, 

the action taken by police must be tailored to rendering 

assistance or mitigating the peril.

Id. at 637.

With respect to the second factor – that “the police action must be 

independent from the detection, investigation, and acquisition of criminal 

evidence” – the Supreme Court noted that the factor “is a common 

requirement to warrantless searches under all three exceptions of the 

community caretaking doctrine, including the emergency aid exception and 

the automobile impoundment/inventory exceptions.” Id. at 635. The 

Livingstone Court then explained, in depth, what it meant in requiring that 

“the police action must be independent from the detection, investigation, and 

acquisition of criminal evidence.” See id. I quote the Livingstone Court’s 

explanation at length:

To describe th[e] requirement [that “the police caretaking 

action must be independent from the detection, investigation, 

and acquisition of criminal evidence”], courts have utilized 

various terminology. . . . Regardless of the language used, 

a critical component of the community caretaking doctrine is 

that the police officer's action be based on specific and 

articulable facts which, viewed objectively and 

independent of any law enforcement concerns, would 

suggest to a reasonable officer that assistance is 

needed.

We are not suggesting, however, that an officer's 

contemporaneous subjective concerns regarding criminal 

activity will preclude a finding that a seizure is valid under 

the community caretaking function. The Wisconsin Supreme 

Court addressed a similar argument in [State v. Kramer, 

759 N.W.2d 598 (Wis. 2009)], wherein the motorist argued 
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that the “totally divorced” language from Cady “means that 

the officer must have ruled out any possibility of criminal 

activity before the community caretaker function is bona 

fide.” 759 N.W.2d at 606. In rejecting the motorist's 

suggestion, the court reasoned:

[T]he nature of a police officer's work is multifaceted. An 

officer is charged with enforcing the law, but he or she 

also serves as a necessary community caretaker when the 

officer discovers a member of the public who is in need of 

assistance. As an officer goes about his or her duties, an 

officer cannot always ascertain which hat the officer will 

wear – his law enforcement hat or her community 

caretaker hat. For example, an officer may come upon 

what appears to be a stalled vehicle and decide to 

investigate to determine if assistance is needed; 

however, the investigation may show that a crime is being 

committed within the vehicle. Therefore, from the point 

of view of the officer, he or she must be prepared for 

either eventuality as the vehicle is approached. 

Accordingly, the officer may have law enforcement 

concerns, even when the officer has an objectively 

reasonable basis for performing a community caretaker 

function.

To conclude otherwise would ignore the multifaceted 

nature of police work and force police officers to let down 

their guard and unnecessarily expose themselves to 

dangerous conditions.

Furthermore, to interpret the “totally divorced” language 

in Cady to mean that an officer could not engage in a 

community caretaker function if he or she had any law 

enforcement concerns would, for practical purposes, 

preclude police officers from engaging in any community 

caretaker functions at all. This result is neither sensible 

nor desirable.

759 N.W.2d at 608-609 (citations omitted). The court 

concluded that, “in a community caretaker context, 

when under the totality of the circumstances an 

objectively reasonable basis for the community 

caretaker function is shown, that determination is not 

negated by the officer's subjective law enforcement 
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concerns.” Id. at 608; see also [State v. Smathers, 753 

S.E.2d 380, 386 (N.C. App. 2014)] (adopting an “objective 

method of inquiry into the purpose of a seizure in the 

community caretaking context,” and declining to adopt a test 

where subjective concerns of crime prevention and 

investigation negate public safety concerns); cf Brigham 

City, Utah v. Stuart, 547 U.S. 398 (2006) (“An action is 

‘reasonable’ under the Fourth Amendment, regardless of the 

individual officer's state of mind, ‘as long as the 

circumstances, viewed objectively justify [the] action.’ The 

officer's subjective motivation is irrelevant.” (emphasis 

original, citations omitted)).

We agree that it is not realistic or wise to expect an officer to 

ignore the nature of his or her role in law enforcement – or 

its inherent dangers – in order for the public servant 

exception of the community caretaking doctrine to apply. 

Thus, so long as a police officer is able to point to 

specific, objective, and articulable facts which, 

standing alone, reasonably would suggest that his 

assistance is necessary, a coinciding subjective law 

enforcement concern by the officer will not negate the 

validity of that search under the public servant 

exception to the community caretaking doctrine. We 

caution, however, that “when the community caretaking 

exception is involved to validate a search or seizure, courts 

must meticulously consider the facts and carefully apply the 

exception in a manner that mitigates the risk of abuse.” 

[State v. McCormick, 494 S.W.3d 673, 688 (Tenn. 2016)].

Livingstone, 174 A.3d at 635-637 (emphasis added).

8

The Livingstone Court held that “Trooper Frantz’s seizure of [Ms. 

Livingstone] was not justified under the public servant exception.” See id.

at 638. A plurality of the Court reasoned that, even though it did not “doubt 

____________________________________________

8 The block quotation is taken from Part II(B) of the Livingstone opinion. We 

note that a majority of the Livingstone Court joined this section of the 

opinion. See Livingstone, 174 A.3d at 638 (Justice Todd authored 

Livingstone; Chief Justice Saylor and Justice Dougherty joined the opinion in 

full; Justice Baer joined Parts I, II(A), and II(B) of the opinion).
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Trooper Frantz’s statement that he pulled alongside [Ms. Livingstone’s] vehicle 

simply to check to see whether she needed assistance,” it was required to 

reverse because the trooper “was unable to articulate any specific and 

objective facts that would reasonably suggest that [Ms. Livingstone] needed 

assistance.”9 Id.

I see no reason why Livingstone’s holding would not also apply to the 

inventory exception. Indeed, the Livingstone Court explained that the 

second factor of its test – that “the police action must be independent from 

the detection, investigation, and acquisition of criminal evidence” – “is a 

common requirement to warrantless searches under all three exceptions of 

the community caretaking doctrine, including the emergency aid exception 

and the automobile impoundment/inventory exceptions.” Id. at 635. The 

Court then defined the “independent from” language as meaning, in the 

context of the community caretaking doctrine, that: “when under the totality 

of the circumstances an objectively reasonable basis for the community 

caretaker function is shown, that determination is not negated by the officer's 

subjective law enforcement concerns.” Id. at 636, quoting Kramer, 759 

N.W.2d at 608.

____________________________________________

9 The Livingstone Court’s “application of the public servant exception under 

the community caretaking doctrine” to the case before it was contained in Part 

II(C) of the opinion. This portion of the opinion did not garner a majority of 

the justices. See Livingstone, 174 A.3d at 638.
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At the very least, Livingstone refines the prior precedent from this 

Court, where we held or suggested that an officer’s “mixed motives” invalidate 

an objectively valid inventory search. See supra at **18-19. Further, 

Livingstone highlights that – while the subjective motivation of individual 

officers is a relevant consideration in the context of inventory searches – an 

objectively valid inventory search is constitutional so long as it was done “in 

good faith and not for the sole purpose of investigation.” Lagenella, 

83 A.3d at 102-103 (quotations and citations omitted) (emphasis added); see 

also Bertine, 479 U.S. at 372 (holding that a vehicle inventory search was 

valid and declaring that “there was no showing that the police, who were 

following standardized procedures, acted in bad faith or for the sole purpose 

of investigation”).

I will now analyze Appellant’s claim that “the trial court erred in denying 

[his] suppression motion because [the] police conducted the search for 

criminal investigatory, rather than non-criminal inventory, purposes.” 

Appellant’s Brief at 5. As noted:

In determining whether a proper inventory search has 

occurred, the first inquiry is whether the police have lawfully 

impounded the automobile, i.e., have lawful custody of the 

automobile. . . .

The second inquiry is whether the police have conducted a 

reasonable inventory search. An inventory search is 

reasonable if it is conducted pursuant to reasonable standard 

police procedures and in good faith and not for the sole 

purpose of investigation.

Lagenella, 83 A.3d at 102-103 (quotations and citations omitted).
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Here, the initial traffic stop of Appellant’s vehicle was proper, as the 

police had probable cause to believe that Appellant was driving a vehicle while 

his operating privilege was suspended, in violation of 75 Pa.C.S.A. 

§ 1543(b)(1). Whren, 517 U.S. at 813 (holding: “the constitutional 

reasonableness of traffic stops [does not] depend[] on the actual motivations 

of the individual officers involved. . . . Subjective intentions play no role in 

ordinary, probable cause Fourth Amendment analysis”).10

Further, although Appellant does not specifically challenge the 

lawfulness of the impoundment, I note: Appellant was not legally permitted 

to operate his vehicle; Appellant stopped his vehicle “in the lane of travel” on 

the on-ramp to a heavily-traveled interstate highway; Appellant’s vehicle 

posed a safety hazard to other motorists; there was no other person in 

____________________________________________

10 Appellant does not specifically challenge the validity of the initial traffic stop. 

Nevertheless, Appellant claims that the circumstances surrounding the traffic 

stop “underscore[] the investigatory motive of the [inventory] search.” 

Appellant’s Brief at 23. For example, Appellant claims: “[p]olice repeatedly 

conducted surveillance at [Appellant’s] apartment;” “[a]lthough aware that 

[Appellant] was driving without a license, the police . . . gave up repeated 

chances to pull him over to address the traffic infraction;” and, the police 

“stopped [Appellant] only after they suspected that he was carrying drugs and 

when his car could only be parked in a position that would allow them to argue 

that it posed a public-safety risk.” See Appellant’s Brief at 23-24. To the 

extent Appellant attempts to probe the subjective motivations of Officer 

Sullivan and Detective Moss for making the initial traffic stop, the attempt 

fails. Whren, 517 U.S. at 813 (holding: “the constitutional reasonableness 

of traffic stops [does not] depend[] on the actual motivations of the individual 

officers involved. . . . Subjective intentions play no role in ordinary, probable 

cause Fourth Amendment analysis”).
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Appellant’s vehicle; and, Appellant did not know anyone “close” who could 

move the vehicle.11 The suppression court also determined that, under these 

____________________________________________

11 Again, Appellant does not specifically challenge the lawfulness of the 

impoundment. Appellant’s Brief at 5 and 22-37. However, in claiming that 

the inventory search was merely a pretext for an investigatory search, 

Appellant also attempts to demonstrate that Detective Moss’s actions, which 

led to the impoundment, “further show the criminal investigatory, rather than 

caretaking, motive of the search.” Appellant’s Brief at 28 (emphasis 

added). As to this argument, Appellant claims that Detective Moss did not 

follow the Ross Township Vehicle Tow Policy because Detective Moss: failed 

to inform Appellant “that if he could arrange for a valid driver to move the car 

within 20 minutes, [the] police would not tow it” and did not permit Appellant 

to “move his car a couple [of] feet so that it was completely on the berm” and 

would not pose a safety hazard. Id. at 28-30. Further, Appellant claims that 

the police should have pulled him over earlier, but manipulated the traffic stop

so that he would park his car “in a position that would allow them to argue 

that it posed a public-safety risk.” Id. at 24.

With respect to the first claim (that Detective Moss failed to inform Appellant 

“that if he could arrange for a valid driver to move the car within 20 minutes, 

[the] police would not tow it”), the evidence reveals that Detective Moss

substantially complied with the Ross Township Vehicle Tow Policy. Detective 

Moss testified that he provided Appellant with the opportunity to arrange for 

another driver to come to move the car, but Appellant informed him that there 

was no one “close” who could accomplish the action and the vehicle, as it 

stood, posed a safety hazard to other motorists. Moreover, the trial court 

specifically found: “[c]onsistent with departmental policy, [Appellant] was 

provided with an opportunity to have a local associate retrieve his vehicle[; 

however, when Appellant] advised the officers that nobody was available to 

retrieve the vehicle, [Detective] Moss sought to have the vehicle towed as it 

was occupying the side of the road on the entry lane to a busy interstate 

highway.” Trial Court Opinion, 6/22/17, at 5. 

As to the second claim (that Detective Moss did not permit Appellant to “move 

his car a couple [of] feet so that it was completely on the berm” and would 

not pose a safety hazard), Appellant was not legally permitted drive or to park 

his vehicle on the berm of Interstate 279. See 75 Pa.C.S.A. § 3353(a)(2)(vii).
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facts, the police were required to impound Appellant’s vehicle because 

“nobody [was] within close proximity to the scene [who] could retrieve the 

vehicle and [] the vehicle was posing a safety hazard to passing motorists.” 

Trial Court Opinion, 6/22/17, at 3.

Thus, on appeal, it is unquestioned that, when the police began the 

inventory search, the police had “lawfully impounded the automobile, i.e., 

ha[d] lawful custody of the automobile.” Lagenella, 83 A.3d at 102-103

(quotations and citations omitted).

As to the inventory search itself, Detective Moss testified that, pursuant 

to Ross Township Police policy, he is required to inventory a vehicle prior to

the tow and that he would normally do so by, first, either memorizing the 

contents of the vehicle or “writ[ing the contents] in [his] notebook” prior to 

the tow. N.T. Suppression Hearing, 1/21/16, at 54 and 89-90. He testified 

that his policy is to then complete a standard inventory form “when [he] get[s] 

back to the station.” Id. at 89. Further, under the Ross Township Vehicle

Tow Policy, Detective Moss is granted 24 hours to submit his completed

Inventory Report form to the Records Division. Ross Township Vehicle Tow 

Policy § 904(C)(4).

____________________________________________

Finally, with respect to the final claim (that the police should have pulled him 

over earlier, but manipulated the traffic stop so that he would park his car “in 

a position that would allow them to argue that it posed a public-safety risk”), 

I again note that “the constitutional reasonableness of traffic stops [does not] 

depend[] on the actual motivations of the individual officers involved. . . . 

Subjective intentions play no role in ordinary, probable cause Fourth 

Amendment analysis.” Whren, 517 U.S. at 813.
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Detective Moss testified that he began the inventory search of 

Appellant’s vehicle after he confirmed that he would need to tow the vehicle. 

N.T. Suppression Hearing, 1/21/16, at 87. As Detective Moss testified, he 

initiated the inventory search by looking into the black drawstring bag that 

was sitting on Appellant’s passenger seat. Id. Detective Moss testified that, 

after he saw contraband in the bag, he “stopped the inventory . . . [so that he 

could] obtain a search warrant and search the rest of the vehicle for further 

narcotics” and arrested Appellant. Id. at 56. The suppression court heard 

this testimony and concluded that Detective Moss performed a valid inventory 

search. Trial Court Opinion, 6/22/17, at 5.

On appeal, Appellant attempts to delve into Detective Moss’s subjective 

motivations for performing the inventory search. Specifically, Appellant 

impugns the search by terming it “pretextual.” See Appellant’s Brief at 31. 

The majority agrees with Appellant and holds that reversal is mandated 

because, in conducting the inventory search, “[t]he police did not adhere to

standard polices; the search was not conducted in good faith; and the purpose

of the search was to discover evidence for a criminal drug investigation.” 

Majority Opinion at *9. In reaching these holdings, I respectfully believe that 

the majority has disregarded our standard of review. Rather than viewing the 

evidence in the light most favorable to the Commonwealth, the majority’s 

factual recitation and analysis is replete with it second-guessing the decisions 

of the police, viewing all police actions in a sinister light, and making new and 

unwarranted credibility determinations. Further, not only does the majority
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improperly view the evidence in the light most favorable to Appellant, but the 

majority also incorrectly holds that an officer’s mixed motives invalidate an 

otherwise permissible inventory search and the majority illogically affords 

Appellant greater individual protection – in effect, shielding Appellant – from 

an otherwise permissible vehicle stop and inventory search simply because

the officers also suspected Appellant of possessing contraband.

I believe that, when the circumstances are viewed properly, it is clear 

that the police were required (by policy) to tow Appellant’s vehicle and that

Detective Moss was required (by policy) to perform an inventory of the vehicle

before the tow. Detective Moss acted in accordance with this policy and began 

his inventory by looking into the black drawstring bag. Further, since he 

discovered contraband in this item, Detective Moss “stopped the inventory . . 

. [so that he could] obtain a search warrant and search the rest of the vehicle 

for further narcotics” and arrested Appellant. N.T. Suppression Hearing, 

1/21/16, at 56. 

Under these facts, I would conclude that Detective Moss conducted the 

inventory search “pursuant to reasonable standard police procedures.”

12

 

____________________________________________

12 Appellant argues that Detective Moss violated standard police procedures 

because he completed a standard “Inventory Report Form,” but “omitted 

numerous items” from the form, “such as a spare tire, jack, lug wrench and 

insurance card.” Appellant’s Brief at 32. Appellant fails to recognize that 

Detective Moss’s inventory search began and ended with the black drawstring 

bag – the remainder of the vehicle was searched pursuant to the search 

warrant. Further, although Detective Moss filled out the Inventory Report 

Form, he testified that he completed the form pursuant to the search warrant, 
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Lagenella, 83 A.3d at 102-103 (quotations and citations omitted). Moreover, 

even though Detective Moss might have possessed “mixed motives” for 

conducting the inventory search, the inventory was not conducted “for the 

sole purpose of investigation” and Detective Moss’s action, in performing 

the inventory search, was, “under the totality of the circumstances . . . 

objectively reasonable.”13 See id. (quotations and citations omitted)

____________________________________________

not the inventory search. N.T. Suppression Hearing, 1/21/16, at 60 and 89-

96 (Detective Moss testified that Appellant’s vehicle “wasn’t inventoried. It 

was searched pursuant to the search warrant” and that he “completed the 

inventory form, but [he] didn’t complete the inventory”). Finally, this Court’s 

past precedent declared that Detective Moss was required to stop the 

inventory and obtain a search warrant after he discovered the contraband. 

See Commonwealth v. Casanova, 748 A.2d 207, 212 (Pa. Super. 2000) 

(holding that, after the police discovered contraband in the vehicle, “they 

should have obtained a search warrant”); but see Gary, 91 A.3d at 138 (“in 

this Commonwealth, the law governing warrantless searches of motor vehicles 

is coextensive with federal law under the Fourth Amendment. The prerequisite 

for a warrantless search of a motor vehicle is probable cause to search; no 

exigency beyond the inherent mobility of a motor vehicle is required”).

13 Almost the entirety of Appellant’s argument is devoted to claiming that 

Detective Moss’s “mixed motives” caused the inventory search to be 

unconstitutional. See Appellant’s Brief at 22-37; see also Appellant’s Reply 

Brief at 8 (arguing that we must reverse because the trial court found that 

Detective Moss had “at least a partial investigatory motive”). As noted above, 

I believe that this claim fails in light of Lagenella and Livingstone. Further, 

to the extent Appellant claims that Detective Moss “admitted that his intention 

in searching [Appellant’s] car was to find drugs,” I believe this claim fails 

because Detective Moss repeatedly testified that, although he “hope[d] to find 

[Appellant] in possession of drugs,” the “real reason for executing this 

traffic stop . . . [was that Appellant was] DUI suspended.” N.T. 

Suppression Hearing, 1/21/16, at 69 and 72 (emphasis added). Again, and 

contrary to Appellant’s claim on appeal and the majority’s holding today, 

Detective Moss’s mixed motives do not render the inventory search 

unconstitutional.
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(emphasis added); Livingstone, 174 A.3d at 636. In other words, the 

inventory search was valid because, regardless of Detective Moss’s mixed 

motives, Detective Moss possessed specific and objective grounds to support 

the impoundment and inventory search of Appellant’s vehicle, Detective Moss 

followed standard police procedures in conducting the impoundment and 

inventory search, and the inventory search was done “in good faith and not 

for the sole purpose of investigation.” I would thus conclude that 

Appellant’s first claim on appeal fails.14, 15

____________________________________________

14 Again, I do not suggest that the subjective motivation of individual officers

is irrelevant in the context of inventory searches. Indeed, as I have stressed, 

it is a relevant consideration. However, as the Pennsylvania Supreme Court 

has explained, “[a]n inventory search is reasonable if it is conducted pursuant 

to reasonable standard police procedures and in good faith and not for the 

sole purpose of investigation.” Lagenella, 83 A.3d at 102-103 

(quotations and citations omitted) (emphasis added); see also Livingstone, 

174 A.3d at 637 (“so long as a police officer is able to point to specific, 

objective, and articulable facts which, standing alone, reasonably would 

suggest that his assistance is necessary, a coinciding subjective law 

enforcement concern by the officer will not negate the validity of that search 

under the public servant exception to the community caretaking doctrine”); 

see also Bertine, 479 U.S. at 372 (holding that a vehicle inventory search 

was valid and declaring that “there was no showing that the police, who were 

following standardized procedures, acted in bad faith or for the sole purpose 

of investigation”). Obviously, the “in good faith and not for the sole purpose 

of investigation” bar is set very high. However, the United States Supreme 

Court and the Pennsylvania Supreme Court set this bar – and we must adhere.

15 In arriving at its conclusion that an officer’s “mixed motives” will invalidate 

an otherwise objectively valid inventory search, the majority examines 

Commonwealth v. Collazo, 654 A.2d 1174 (Pa. Super. 1995) and In 

Interest of M.W., 194 A.3d 1094 (Pa. Super. 2018). In both Collazo and 

M.W., this Court held that the police conducted valid inventory searches and, 
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For Appellant’s second claim, Appellant challenges the discretionary 

aspects of his sentence. “[S]entencing is a matter vested in the sound 

discretion of the sentencing judge, whose judgment will not be disturbed 

absent an abuse of discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 

1185 (Pa. Super. 2001). Moreover, pursuant to statute, Appellant does not 

have an automatic right to appeal the discretionary aspects of his sentence. 

____________________________________________

in holding that the searches were valid, we declared: the officer’s “motive for 

[conducting the inventory search] was solely to identify the owner of the 

vehicle and not to uncover evidence of a crime. As a result, the officers 

lawfully conducted a proper inventory search.” In Interest of M.W., 194 

A.3d at 1101; see also Collazo, 654 A.2d at 1177 (“[t]he motive for the 

[inventory search] was solely to identify its owner and not to uncover evidence 

of crime. The search, therefore, was within the caretaking function of the 

police, and, as such, was properly conducted without a warrant”). The 

majority then uses these statements to support its proposition that an officer’s 

“mixed motives” will invalidate an objectively reasonable inventory search. 

I believe that the majority reads too much into Collazo and M.W. First, the 

cases are of limited use because, in both cases, we held that the officers 

conducted valid inventory searches. Second, in rendering our holdings, we 

merely stated the obvious: that, where “the motive for [conducting the 

inventory search] was solely to identify the owner of the vehicle and not to 

uncover evidence of a crime,” the inventory search is valid. In Interest of 

M.W., 194 A.3d at 1101. In contrast to what the learned majority apparently 

believes, our statements in Collazo and M.W. do not mean that, for an 

inventory search to be valid, an officer must have a “pure” motivation to 

conduct the inventory search. The statements simply declare that, in those 

cases, each officer held a pure, subjective motivation to conduct the inventory 

search and, as a result, the searches were unquestionably valid. Finally, the 

statements in Collazo and M.W. are from this Court – not the United States 

Supreme Court or the Pennsylvania Supreme Court. The statements thus 

cannot purport to overrule the Pennsylvania Supreme Court’s holding that 

“[a]n inventory search is reasonable if it is conducted pursuant to reasonable 

standard police procedures and in good faith and not for the sole purpose 

of investigation.” Lagenella, 83 A.3d at 102-103 (quotations and citations 

omitted) (emphasis added).
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See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for 

permission to appeal the discretionary aspects of his sentence. Id.

As this Court explained:

[t]o reach the merits of a discretionary sentencing issue, we 

conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, Pa.R.A.P. 902, 

903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, 

Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, [42 Pa.C.S.A.]

§ 9781(b).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

In the case at bar, Appellant filed a timely post-sentence motion and 

notice of appeal. Further, within Appellant’s Rule 2119(f) statement, 

Appellant contends (amongst other things) that the trial court sentenced him 

excessively because it incorrectly believed “that [Appellant] was only off [of 

federal] supervision for one month before the instant arrest.” Appellant’s Brief 

at 42; see also Trial Court Opinion, 6/22/17, at 9. As Appellant declares,

“[t]hat information was incorrect, as [Appellant] was off supervision for more 

than one year” prior to his arrest.16 Id.

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16 Appellant did not raise this claim in his post-sentence motion or concise 

statement of errors complained of on appeal. Appellant’s Post-Sentence 

Motion, 7/29/16, at 1-4; Appellant’s Rule 1925(b) Statement, 4/17/17, at 1-

5. However, as Appellant correctly notes, “[a]t the sentencing hearing, the 

trial court did not cite as justification for the sentence its belief that [Appellant] 

ha[d] only been off of supervision for one month” and “[t]he first time the trial 

court mentioned this factor was in its written opinion,” which the trial court 
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This claim raises a substantial question that the sentence appealed from 

is not appropriate under the Sentencing Code. Indeed, as this Court has held:

prior to imposing sentence a sentencing judge may 

appropriately conduct an inquiry broad in scope, largely 

unlimited either as to the kind of information he may 

consider, or the source from which it may come. 

Nevertheless, the discretion of a sentencing judge is not 

unfettered; a defendant has the right to minimal 

safeguards to ensure that the sentencing court does 

not rely on factually erroneous information, and any 

sentence predicated on such false assumptions is 

[inimical] to the concept of due process.

Commonwealth v. Rhodes, 990 A.2d 732, 746 (Pa. Super. 2009) 

(quotations and citations omitted) (emphasis added).

In its Rule 1925(a) opinion, the trial court justified its sentence by 

declaring: “it was only approximately one month after he was release[d] from 

federal supervision on that case that he was arrested in this case.” Trial Court 

Opinion, 6/22/17, at 9. Appellant claims that this assertion is factually 

incorrect, as he “was off supervision for more than one year” prior to his 

arrest. Appellant’s Brief at 42. The Commonwealth agrees with Appellant and 

notes that the trial court’s statement was “mistaken[].” Commonwealth’s 

Brief at 44 n.13. Further, the trial court utilized this factually incorrect 

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filed well after Appellant filed his post-sentence motion and Rule 1925(b) 

statement. See Appellant’s Brief at 52 n.9; see also Trial Court Opinion, 

6/22/17, at 1-10. Therefore, since the first time Appellant could have raised 

the current claim was in his appellate brief, I would conclude that Appellant’s 

claim on appeal is not waived.
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statement to substantiate its conclusion that: “the record reflects 

[Appellant’s] absolute unwillingness to conform his conduct to the dictates of 

the law.” Trial Court Opinion, 6/22/17, at 9.

Given the trial court’s mistake, I would vacate Appellant’s judgment of 

sentence and remand for resentencing, as it appears that “the sentencing 

court . . . rel[ied] on factually erroneous information” when it sentenced 

Appellant.17 Rhodes, 990 A.2d 746 (quotations and citations omitted); see 

also Commonwealth v. Bethea, 379 A.2d 102, 106-107 (Pa. 1977) (“[i]n 

deciding whether a trial judge considered only permissible factors in 

sentencing a defendant, an appellate court must, of necessity, review all of 

the judge's comments. Moreover, in making this determination it is not 

necessary that an appellate court be convinced that the trial judge in 

fact relied upon an erroneous consideration; it is sufficient to render 

a sentence invalid if it reasonably appears from the record that the 

trial court relied in whole or in part upon such a factor”) (emphasis 

added). In all other respects, however, I would affirm. 

Thus, I dissent.

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17 Since I would vacate Appellant’s judgment of sentence and remand for 

resentencing, Appellant’s remaining discretionary aspects of sentencing claims 

are moot.