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Commonwealth v. Karash

Superior Court of Pennsylvania

August 21, 2017

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
FREDERICK W. KARASH, Appellant

         Appeal from the Judgment of Sentence September 9, 2016, in the Court of Common Pleas of Erie County, Criminal Division at No(s): CP-25-SA-0000091-2016

          BEFORE: OLSON, STABILE, and STRASSBURGER, [*] JJ.

          OPINION

          STRASSBURGER, J.

         Frederick W. Karash (Appellant) pro se appeals from the judgment of sentence imposed on September 9, 2016, after he was found guilty of a summary offense for not having the required safety equipment on his boat.[1] This case presents an issue of first impression in Pennsylvania, namely whether the stop of a boat without reasonable suspicion or probable cause on a Pennsylvania waterway violates the Fourth Amendment to the United States Constitution or Article I, Section 8 of the Pennsylvania Constitution. Concluding that the stop violates the Fourth Amendment, [2] we reverse Appellant's judgment of sentence.

         We offer the following factual summary. On May 23, 2016, waterways conservation officer (WCO) James Smolko was patrolling Lake Erie. At 7:30 p.m., he observed people fishing from Appellant's boat. He stopped and boarded Appellant's boat to conduct a "license check under [30 Pa.C.S. § ]2703(a)." N.T., 9/9/2016, at 5. After concluding that all who were fishing were compliant with license requirements, WCO Smolko conducted a safety inspection. WCO Smolko determined that there were not enough personal flotation devices (PFDs) for the number of individuals aboard. Appellant was issued a citation for violating 30 Pa.C.S. § 5123(a)(5). WCO Smolko provided an additional PFD and permitted Appellant to continue boating.

         A hearing was held before a district magistrate judge on June 23, 2016, and Appellant was convicted of the aforementioned summary offense. Appellant timely filed an appeal for a trial de novo to the Court of Common Pleas of Erie County. Prior to trial, Appellant filed a motion to suppress the Commonwealth's evidence arguing that WCO Smolko "did not have reasonable suspicion or probable cause to conduct a stop" and that the stop violated Appellant's rights to "be free of illegal search and seizure." Motion to Suppress, 8/12/2016.

         A combined motion to suppress and de novo hearing was held on September 9, 2016. The Commonwealth argued that WCO Smolko had the authority to stop Appellant's boat pursuant to 30 Pa.C.S. § 901(a)(10), which provides that every WCO "shall have the power and duty to … [s]top and board any boat subject to this title for the purpose of inspection for compliance with Part III (relating to boats and boating) and the rules and regulations promulgated thereunder." 30 Pa.C.S. § 901(a)(10). Thus, the Commonwealth argued that WCO Smolko did not need reasonable suspicion or probable cause to stop Appellant's boat to conduct a safety inspection. Appellant argued that despite the statute, "the stop violated Article 1, Section 8 of the Pennsylvania Constitution; therefore, it was illegal."[3] N.T., 9/9/2016, at 14.

         The trial court denied Appellant's motion to suppress, concluding that pursuant to the statute, WCO Smolko had the "power to stop and board any boat without probable cause for the purpose of inspection for compliance with safety rules and regulations." Order, 9/9/2016. The trial court convicted Appellant of violating 30 Pa.C.S. § 5123(a)(5) and fined him $75 plus costs. Appellant timely filed a notice of appeal to this Court. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

         On appeal, Appellant presents both constitutional claims and non-constitutional claims. "It is well settled that when a case raises both constitutional and non-constitutional issues, a court should not reach the constitutional issue if the case can properly be decided on non-constitutional grounds." Ballou v. State Ethics Comm'n, 436 A.2d 186, 187 (Pa. 1981).

         In Appellant's first non-constitutional claim, he argues that the trial court erred by not conducting a separate suppression hearing prior to trial. See Appellant's Brief at 29-30. However, Appellant has waived that issue by failing to object to the trial court's procedure at the time it occurred. "In order to preserve an issue for review, a party must make a timely and specific objection." Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003); Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Moreover, we have held that a trial court at a de novo hearing does not commit "procedural error in not conducting a separate suppression hearing." Commonwealth v. Breslin, 732 A.2d 629, 633 (Pa. Super. 1999) (emphasis added).

         Appellant also argues that the evidence was insufficient to sustain his conviction because his "boat was equipped with numerous personal flotation devices sufficient to have a wearable device for every occupant of the boat and have remaining throwable devices." Appellant's Brief at 33.

         Appellant did not raise this issue in his Pa.R.A.P. 1925 statement; thus, it is waived on appeal. See Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.").

         Moreover, at trial, Appellant did not offer any testimony or evidence about the number of wearable and throwable devices on his boat; therefore, the trial court could not have considered this situation. Thus, we hold that Appellant has waived this argument for on that basis as well.

         In addition, even if we were to consider this argument, he would not be entitled to relief.

The section for which Appellant was convicted provides the following.
(a) General Rule.--The commission may promulgate such rules and regulations as it deems appropriate to provide for the operation and navigation of boats, including the rules of the road for boating, the ways, manner, methods and means of boating, the management of boats and the use thereof and the protection of waters for boating purposes. The rules and regulations may relate to:
***
(5) Equipment requirements for boats, operators of boats, passengers on boats and persons towed or pulled by boats.

30 Pa.C.S. § 5123(a)(5). Boating safety equipment is governed by 58 Pa. Code § 97.1, which provides that "[a] person may not use a boat unless at least one wearable PFD is on board for each person and the PFD is used in accordance with requirements of the approval label." A wearable device is defined as "[a] PFD that is intended to be worn or otherwise attached to a person's body." Id. According to WCO Smolko, Appellant's boat "was short one [PFD] which was a wearable [PFD]." N.T., 9/9/2016, at 5.

         Having concluded we cannot decide this appeal on non-constitutional grounds, we turn to Appellant's claim that the trial court erred by denying his motion to suppress because the stop was "illegal under the PA Constitution." Appellant's Brief at 23. We review this claim mindful of the following.

Our standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct.
[W]e 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. McCoy, 154 A.3d 813, 815-16 (Pa. Super. 2017).

         Appellant argued at the trial court that his stop was illegal pursuant to Article I, § 8 of the Pennsylvania Constitution. In other words, Appellant challenges the trial court's legal conclusion that WCO Smolko had the authority to stop and search his boat without reasonable suspicion or probable cause. We point out that "the federal constitution establishes certain minimum levels which are equally applicable to the [analogous] state constitutional provision." Commonwealth v. Edmunds, 586 A.2d 887, 894 (Pa. 1991) (internal quotation marks omitted).

Both the Fourth Amendment to the United States Constitution and Article I, § 8 of the Pennsylvania Constitution protect the people from unreasonable searches and seizures. The Fourth Amendment and Article I, § 8 have long been interpreted to protect the people from unreasonable government intrusions into their privacy. The reasonableness of a governmental intrusion varies with the degree of privacy legitimately expected and the nature of the governmental intrusion.

Commonwealth v. McCree, 924 A.2d 621, 626 (Pa. 2007) (internal citations and quotation marks omitted). "The Fourth Amendment's proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner." Commonwealth v. Smith, 77 A.3d 562, 571 (Pa. 2013). "In order to determine the reasonableness of a particular search or seizure a balancing analysis is utilized, wherein the intrusion on the individual of a particular law enforcement practice is balanced against the government's promotion of legitimate interests." Commonwealth v. Blouse, 611 A.2d 1177, 1167 (Pa. 1992). See also Commonwealth v. Johnston, 530 A.2d 74 (Pa. 1987) (holding that balancing-of-interests analysis is required when determining the reasonableness of a search and seizure).

         With respect to the government's promotion of legitimate interests, the Commonwealth argues that due to "public interest in safety inspections of boats in the waterways, the intent of the General Assembly was to grant plenary authority to conduct safety inspections without a warrant, probable cause, or reasonable suspicion." Commonwealth's Brief at 6. Specifically, as to life jacket availability, the Commonwealth sets forth the following.

In its 2014 Recreational Boating Statistics Report, the United States Coast Guard reported that Pennsylvania had sixty-six boating accidents of which twenty were fatal in addition to twenty-one other deaths…. Most relevant to this matter, the Coast Guard reported that where cause of death was known, 78% of fatal boating accident victims drowned. Of those drowning victims with reported life jacket usage, 84% were not wearing a life jacket.

Id. at 7 (internal citations and quotation marks omitted).

         Common sense dictates that recreational boater safety is a legitimate and important government interest.[4] Similar to police having the authority to ensure safety on highways, [5] WCOs have the authority and responsibility to ensure safety on Pennsylvania's many bodies of water. Thus, the issue in this case is not whether Pennsylvania has a legitimate and important interest to promote, because it does, but whether the only or best way to promote that legitimate interest is through the random, suspicionless stoppage of boats authorized by 30 Pa.C.S. § 901(a)(10).

         Case law interpreting this provision is sparse. The only published appellate case is Commonwealth v. Lehman, 857 A.2d 686 (Pa. Super. 2004). In Lehman, a U.S. Coast Guard officer and police detective were summoned to a bar where an employee explained that a patron had just left the bar with an open beer and boarded a boat. The officer and detective pursued the boat, stopped it, and boarded it. When they encountered Lehman on the boat, they noticed visible signs of intoxication, and arrested him for boating under the influence.

         The Lehman suppression court concluded that this stop violated Article I, § 8 of the Pennsylvania Constitution because the "sole purpose in making the stop was to investigate suspected criminal activity." 857 A.2d at 687. On appeal, this Court agreed, concluding that "the stop and boarding was made solely in response to the complaint from the employee of the bar; absent this complaint, the Coast Guard vessel would not have stopped [Lehman's] vessel; and the Coast Guard officer never sought to review documents or perform a safety inspection." Id. Accordingly, it is a violation of Article I, § 8 to use the provisions of the statute permitting the stopping and boarding of a boat to conduct a document or safety check as a pretext to investigate criminal activity. Id. at 687-88.

         However, Lehman is distinguishable from the instant matter, and Pennsylvania has not had the opportunity to address the validity of a random, suspicionless stop. Both the United States Supreme Court and other states have, and we turn to them for guidance. We begin with an analysis of the seminal United States Supreme Court decision in United States v. Villamonte-Marquez, 462 U.S. 579 (1983). In Villamonte-Marquez, the Court considered whether a statute that permitted customs officers to "at any time go on board of any vessel … at any place in the United States … and examine the manifest and other documents and papers" was in violation of the Fourth Amendment. Id. at 580 (quoting 19 U.S.C. § 1581(a)).[6]

         The facts of that case were as follows. In the afternoon of March 6, 1980, in Louisiana, customs officers, accompanied by Louisiana state police officers, were patrolling a channel 18 miles inland from the Gulf coast used to travel between Lake Charles and the open sea. The officers saw a sailboat rock side to side violently after being waked by a much larger vessel. The officers approached the sailboat to check on the welfare of the individuals aboard. When an individual on board "shrugged his shoulders in an unresponsive manner" after being asked if he was all right, the officers boarded the boat and requested documentation. Villamonte-Marquez, 462 U.S. at 583. While examining the documentation, one officer smelled what he believed to be marijuana. The officers looked through an open hatch and discovered 5, 800 pounds of marijuana. The officers arrested the two men aboard the sailboat, and a jury in the District Court subsequently found them guilty of various drug-related offenses.

         On appeal to the Fifth Circuit, the Court of Appeals held the officers' boarding of the sailboat was not reasonable under the Fourth Amendment. The Supreme Court granted certiorari to consider this issue because the question "affects the enforcement of Customs laws." Id. at 584.

         The Supreme Court balanced the statute's "intrusion on the individual's Fourth Amendment interests against its promotion of legitimate government interests." Id. at 588. It acknowledged that "if the customs officers in this case had stopped an automobile on a public highway near the border, rather than a vessel in a ship channel, the stop would have run afoul of the Fourth Amendment because of the absence of articulable suspicion." Id. However, the Supreme Court considered the "important factual differences between vessels located in waters offering ready access to the open sea and automobiles on principal thoroughfares in the border area." Id.

         In reversing the Fifth Circuit, the Supreme Court set forth the following.

the Government's boarding of [this sailboat] did not violate the Fourth Amendment…. Random stops without any articulable suspicion of vehicles away from the border are not permissible under the Fourth Amendment, … but stops at fixed checkpoints or at roadblocks are. The nature of waterborne commerce in waters providing ready access to the open sea is sufficiently different from the nature of vehicular traffic on highways as to make possible alternatives to the sort of 'stop' made in this case less likely to accomplish the obviously essential governmental purposes involved. The system of prescribed outward markings used by States for vehicle registration is also significantly different than the system of external markings on vessels, and the extent and type of documentation required by federal law is a good deal more variable and more complex than are the state vehicle registration laws. The nature of the governmental interest in assuring compliance with documentation requirements, [7] particularly in waters where the need to deter or apprehend smugglers is great, are substantial; the type of intrusion made in this case, while not minimal, is limited.

Id. at 593 (footnote added). Thus, the Villamonte-Marquez holding is two-fold: 1) the federal government has a legitimate interest in promoting compliance with complex documentation requirements that encompass a host of federal and international laws, and 2) the nature of patrolling areas with access to the open sea renders traditional checkpoints not a viable option.[8]

         Both the legitimate government interests underlying the federal regulation of the waterways and the nature of the areas being patrolled are clearly different in Pennsylvania. Although Pennsylvania courts have not addressed these differences, several of our sister states have.[9]

         In State v. Carr, 878 N.E.2d 1077 (Ohio App. 3d 2007), park officers were on routine patrol in the waters of Buckeye Lake State Park. They randomly stopped and approached Carr's "pontoon boat to conduct a safety inspection." Id. at 1079. While conducting this inspection, they observed that Carr was exhibiting signs of intoxication. Accordingly, they arrested him for operating a boat under the influence of alcohol. Carr filed a motion to suppress arguing that the stop of his boat, which was not based upon reasonable suspicion, violated the Fourth Amendment. That motion was denied, Carr pled no contest to the charges, and he then appealed. On appeal, Carr argued that the trial court erred in denying the motion to suppress.

         The Ohio court recognized that this was an issue of first impression in that jurisdiction. The Ohio court distinguished Villamonte-Marquez, pointing out that "the waters of Buckeye Lake are not open to the sea, so a checkpoint is a practical alternative." Carr, 878 N.E.2d at 1079. The Ohio court went on to hold that if "an officer does not have reasonable suspicion to stop a watercraft, the officer may still do a safety inspection pursuant to a checkpoint system with controls and procedures in place that place limits on officer discretion." Id. The court pointed out the following.

We recognize that the state has a strong interest ensuring boating and waterway safety for its citizens, but that interest can be realistically promoted through means other than random, sporadic stops with no limitations placed upon the officer's discretion in the field. The practicality of checkpoints either at docks or marinas or on the water (either at points of entry or no-wake zones) will depend on the specific body of water, but the use of checkpoints can be accomplished in ...

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