Lawfully immobilizing a vehicle on a finding its driver is unlicensed does not provide reason to perform an inventory search, a divided state Supreme Court has ruled.

The court further determined that police need a reason to lawfully tow the vehicle before they can conduct the search.

The Dec. 27 holding reverses the state Superior Court’s decision to allow evidence uncovered during an inventory search after a vehicle was immobilized pursuant to the police department’s policy because the driver had a suspended license, but before the officer had sufficient reason to tow the vehicle.

Justice Debra Todd, writing the majority decision in Commonwealth v. Lagenella, said there was no reason to tow the vehicle pursuant to 75 Pa.C.S.A. 6309.2(a)(1), and therefore the inventory search, which is an exception to the Fourth Amendment protection against unreasonable search and seizure, was unlawful.

“Because there was no basis for [the officer] to tow appellant’s vehicle in the first instance, the inventory search of appellant’s vehicle was improper, and the fact that [the officer] performed the vehicle inventory search in accordance with a standard inventory policy is immaterial,” Todd said.

She was joined by Justices Max Baer and Seamus P. McCaffery, as well as Chief Justice Ronald D. Castille. Justice Thomas G. Saylor filed a concurring opinion, and Justice J. Michael Eakin filed a dissenting opinion.

While Saylor said he disagreed with the majority to the extent that it reflected a “bright-line rule” that no inventory searches conducted in connection with immobilizations can be valid, Eakin said he felt the majority’s decision would require a car to be immobilized for 24 hours before it could be removed by a tow truck and then lawfully searched.

“In parlance of Fifth Amendment cases, this car was no longer free to go,” Eakin said. “While appellant claims it was not in custody of the police, this car was seized and in police possession.”

According to Todd, on Dec. 31, 2008, Cpl. Terry Wealand, a police officer with the Harrisburg Bureau of Police, saw Francis Patrick Lagenella Jr. pull into traffic without signaling. Wealand pulled Lagenella over, and subsequently noticed that his vehicle did not have the required emissions sticker and that Lagenella’s license was suspended. Wealand issued two citations, asked Lagenella to exit the car and then told Lagenella that his car would be towed because his license was suspended.

Although Lagenella said his friend had a towing business and could tow his vehicle, Wealand told him the department’s policy on towing vehicles and said he was required to conduct an inventory of the vehicle’s contents.

Todd said the search was conducted when temperatures were below freezing, so Wealand asked Lagenella if he would like the jacket in the backseat of the vehicle. Before Wealand gave Lagenella the jacket, Todd said, he felt it for weapons and subsequently found an eyeglasses case, which was found to contain marijuana seeds, cocaine and a box-cutter. Lagenella was arrested.

Wealand then searched the car and found a 20-gauge shotgun and a hunting rifle. Based on the earlier check of Lagenella’s license, Wealand knew that Lagenella was a convicted felon and could not own a weapon, Todd said, adding that Lagenella also admitted that the hunting rifle was stolen.

Before having a bench trial, Lagenella filed a motion to suppress the evidence of drugs and guns and argued that he did not consent to opening the glasses case, that there was no basis for Wealand to open the case under the plain-feel doctrine and that Wealand did not have the authority to tow his vehicle under 75 Pa.C.S.A. 6309.2 because the vehicle did not present an issue of public safety.

The trial court granted the motion with respect to the glasses case, but did not grant the motion pertaining to the weapons. Lagenella was convicted and sentenced to three to 10 years’ incarceration.

On appeal to the Superior Court, he argued that the law allowed his vehicle to be towed only if it posed an issue of public safety and that, since the public safety concerns were lacking, his vehicle could not have been immediately towed.

In a split decision, the Superior Court held that the vehicle stop was valid, that the vehicle was properly immobilized, that Wealand conducted a valid inventory search under the department’s policy, and that the officer found the guns in the process of the legal search.

In her dissent, however, Judge Jacqueline O. Shogan said inventory searches are to protect the owner’s property and not to uncover evidence. She said that while it was necessary to take custody of the vehicle because Lagenella didn’t have a license, Wealand did not need to search the vehicle, because the vehicle did not need to be towed.

Lagenella appealed to the Supreme Court. In addition to arguing that because there was no public safety issue there was no basis to tow the vehicle, Lagenella further argued that because there was no basis for the inventory search, the inventory search violated his rights under the Fourth Amendment of the U.S. Constitution and Article 1, Section 8 of the Pennsylvania Constitution.

Lagenella also argued that once Wealand found the drug-related evidence in the eyeglasses case, the alleged inventory search became an investigatory search for which the officer would need a warrant.

The state responded that under Section 6309.2, Wealand needed to immobilize Lagenella’s vehicle and that because police lawfully took custody of the vehicle once it was immobilized, the officer was permitted to conduct an inventory search.

The state further contended that when an officer finds evidence of contraband, the officer can continue the inventory search without stopping to obtain a search warrant, and that even if there was no basis to tow the appellant’s vehicle, Wealand was authorized to conduct a vehicle inventory search after he lawfully immobilized the vehicle.

According to Todd, the state relied on the Superior Court’s 2010 decision in Commonwealth v. Thompson, which the Superior Court quoted “at length” in its opinion in the Lagenella case.

In Thompson, the Superior Court found that police could conduct an inventory search of an immobilized vehicle, as the vehicle had been lawfully immobilized. The court further said that whether the vehicle had been immobilized or towed is irrelevant for an inventory search analysis.

The majority, however, agreed with Lagenella that under Section 6309.2(a)(1), Wealand did not have the authority to tow the vehicle, and therefore the search was improper.

Todd noted that Section 6309.2(a)(1) says that a law enforcement officer shall immobilize a vehicle if a person is driving with a suspended license and must then notify a judicial authority, or must, “in the interest of public safety,” direct the vehicle to be towed and stored.

Wealand did not give testimony indicating that the defendant’s vehicle was disabled, damaged or impeded on traffic, and the state failed to show that the decision to tow was based on public safety concerns, Todd said.

“Upon immobilization, the vehicle’s operator may seek release of the vehicle from the judicial authority, not the police; and only upon the vehicle operator’s failure to obtain a certification of release within 24 hours will the judicial authority notify law enforcement, who at that time shall arrange for the towing and storage of the vehicle,” she said. “These procedures indicate that a vehicle that is simply immobilized is not within the lawful custody of the police.”

Todd rejected the state’s argument that Thompson applied, cited the 1976 U.S. Supreme Court decision in South Dakota v. Opperman and the Superior Court’s 2006 decision in Commonwealth v. Henley, and said that intrusion of an inventory search is limited to the search’s caretaking function.

Todd also cited the U.S. Supreme Court’s 1987 decision in Colorado v. Bertine, in which the court suggested that a vehicle is in lawful police custody and can undergo an inventory search only when the vehicle has been impounded.

A vehicle that has only been immobilized in place, she said, is not in the lawful custody of police for purposes of an inventory search.

First Assistant District Attorney of Dauphin County Francis T. Chardo, who represented the state, said the ruling will be helpful going forward.

“We understand the court’s reasoning. It was an area of the law with not a lot of guidance, and now we can adjust our policies accordingly,” he said. “We are going to have a model countywide inventory impoundment policy.”

Lagenella’s attorney, Andrea Haynes of the Dauphin County Public Defender’s Office, said she was pleased with the decision.

“It’s good to see the Supreme Court upholding the Fourth Amendment,” she said. “Our office is very happy with the decision.”

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.

(Copies of the 22-page opinion in Commonwealth v. Lagenella, PICS No. 13-3418, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •