from the Judgment of Sentence September 9, 2016, in the Court
of Common Pleas of Erie County, Criminal Division at No(s):
BEFORE: OLSON, STABILE, and STRASSBURGER, [*] JJ.
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. 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,  we reverse
Appellant's judgment of sentence.
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
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.
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." N.T.,
9/9/2016, at 14.
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.
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).
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).
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.
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.").
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.
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
(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.
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
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.
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
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).
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
sense dictates that recreational boater safety is a
legitimate and important government interest. Similar to
police having the authority to ensure safety on highways,
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).
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
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.
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. §
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
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.
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
reversing the Fifth Circuit, the Supreme Court set forth the
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,  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
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.
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.
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 ...