Com. of PA v. F.W. Karash

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

v. : No. 473 C.D. 2020

: Submitted: October 11, 2023

Frederick W. Karash, :

Appellant :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE LORI A. DUMAS, Judge

HONORABLE STACY WALLACE, Judge

OPINION

BY JUDGE WALLACE FILED: February 6, 2024

Frederick W. Karash (Defendant) appeals pro se from the Court of Common

Pleas of Erie County’s (trial court) judgment of sentence following his summary

conviction for violating the Fish and Boat Code1 (the Code) by having an insufficient

number of life jackets known as personal floatation devices (PFDs) aboard his boat.

Defendant challenges the trial court’s denial of his suppression motion and the

sufficiency of the evidence supporting his conviction. After review, we affirm.

BACKGROUND

Around 7:30 p.m. on May 20, 2016, while patrolling Lake Erie, Officer James

Smolko (Officer Smolko), a waterways conservation officer (WCO) for the

1

30 Pa.C.S. §§ 101-7314.

Pennsylvania Fish and Boat Commission (Commission), observed individuals

fishing from Defendant’s boat, which was a Sea Ray Cabin Cruiser approximately

22 feet in length. Trial Court Opinion, 12/24/18, (Op.), at 1; Notes of Testimony,

9/14/18, (N.T.) at 8, 22.2 Officer Smolko approached Defendant’s boat to conduct a

fishing license check. Op. at 1; N.T. at 9-10. At the time, Officer Smolko was

dressed in full uniform and driving a marked patrol boat. Op. at 1; N.T. at 6-7. Two

cadet trainees and another WCO were also on the patrol boat with Officer Smolko.

Id. Officer Smolko did not activate his patrol boat’s lights or sirens as he approached

Defendant’s boat. Op. at 1; N.T. at 9.

Officer Smolko motored his patrol boat close to Defendant’s boat and

identified himself as a WCO. Op. at 1; N.T. at 10. Officer Smolko requested that

the people on board hold up their fishing licenses. Op. at 3; N.T. at 10. Pennsylvania

fishing licenses are small cards with images displayed on the front, which vary

between an outline of the keystone or the outline of a fish. N.T. at 12. The back of

the fishing license provides the license holder’s name and other identifying features.

Id. at 13. After confirming the individuals who were fishing possessed fishing

licenses, Officer Smolko informed Defendant he was going to conduct a safety

equipment inspection of the boat, as was ordinary for Officer Smolko following a

fishing license check. Op. at 3; N.T. at 13.

Routinely, to conduct a safety equipment inspection, Officer Smolko would

check to ensure the boat carried sufficient life jackets or PFDs, and a Type 4

throwable device, which is a throwable seat cushion buoy. N.T. at 13-14.

Additionally, Officer Smolko would check for the visual distress signals, day and

night use flares or a distress flag, a fire extinguisher, and the boat’s registration. Id.

2

N.T. refers to the transcript of the September 14, 2018 suppression hearing held before the trial

court.

2

at 14. Officer Smolko would not board boats to conduct safety equipment

inspections, but rather would request the owners or operators of the boats to show

him the equipment for his inspection. Op. at 4; N.T. at 17.

Here, while conducting the safety equipment inspection of Defendant’s boat,

Officer Smolko requested Defendant hand everyone on board a wearable PFD so

Officer Smolko could determine whether the equipment was readily accessible, in

serviceable condition, and the appropriate size for the individuals on board. Op. at

5; N.T. at 26-27. While Defendant’s boat had five people on board, Defendant had

only four wearable PFDs. Op. at 5; N.T. at 15-16. After determining Defendant was

not in compliance with Section 97.1(b) of the Commission’s Regulations,3 which

requires a boater have at least one wearable PFD on board for each person, 58 Pa.

Code § 97.1(b), Officer Smolko took Defendant’s identification and drove away

from Defendant’s boat to do a vessel and license check through Erie County

dispatch. Op. at 5; N.T. at 17-18. At the end of the encounter, Officer Smolko gave

Defendant a wearable PFD from his patrol boat so Defendant could continue to boat

and return to the marina. Op. at 5; N.T. at 16. During the entire interaction between

Officer Smolko and Defendant, no WCOs boarded Defendant’s boat or tied the boats

together. Op. at 5; N.T. at 17. The encounter lasted between 30 and 40 minutes.

Op. at 6; N.T. at 17, 113.

Officer Smolko issued a summary citation to Defendant for violating Section

97.1(b) of the Commission’s Regulations, 58 Pa. Code § 97.1(b). On June 23, 2016,

a magisterial district judge found Defendant guilty of the offense. Defendant

appealed to the trial court. Prior to the trial de novo, Defendant filed a suppression

motion arguing the stop constituted an unreasonable search and seizure under the

3

The Commission’s Regulations refer to Part II, relating to the Fish and Boat Commission, of

Title 58 of the Pennsylvania Administrative Code. See 58 Pa. Code §§ 51.1 – 119.8.

3

federal and state constitutions. On September 9, 2016, the trial court conducted a

combined suppression hearing and trial. The trial court denied Defendant’s

suppression motion, found him guilty, and sentenced him to a $75.00 fine.

Defendant appealed to the Superior Court of Pennsylvania. A divided three-judge

panel reversed Defendant’s conviction and found the stop violated his right to be

free from unreasonable searches and seizures. The Commonwealth petitioned for

reargument, which the Superior Court granted, vacating the panel’s decision. On

May 30, 2018, the Superior Court, en banc, concluded deficiencies in the record

precluded its review and vacated Defendant’s judgment of sentence and remanded

for a new suppression hearing so the record could be properly developed.

On September 14, 2018, the trial court held a suppression hearing and denied

Defendant’s motion to suppress. Subsequently, on May 6, 2019, the trial court held

a trial de novo and denied Defendant’s summary appeal, reimposing his sentence.

Defendant appealed to the Superior Court. On April 3, 2020, the Superior Court

transferred the case to this Court.

On appeal to this Court, Defendant, pro se, challenges the denial of his

suppression motion and his conviction.4 Regarding the denial of his suppression

4

For ease of reference and analysis, we have summarized Defendant’s challenges. In his brief,

Defendant asserts nine questions for review as follows:

1 Did the Commonwealth meet its burden of proof?

2 Was the Ruling of failure to suppress evidence by the lower court unconstitutional

as applied by both the Pennsylvania Constitution and the Federal Constitution?

Furthermore, was the law used to justify this intrusion properly interpreted and

applied?

3 Did the Commonwealth show that a special circumstance exists that would enable

it to readily usurp the most basic of rights?

(Footnote continued on next page…)

4

motion, Defendant argues he had a reasonable expectation of privacy on his boat and

Officer Smolko’s stop and detention of his boat was not supported by reasonable

suspicion, probable cause, or a search warrant, and thus violated his right to be free

from unreasonable search and seizure. Defendant’s Br. at 8. Regarding his

conviction, Defendant asserts the Commonwealth failed to prove Defendant did not

have the required number of PFDs aboard his boat. Id. at 7

In response, the Commonwealth asserts the stop of Defendant’s boat and brief

inspection of the fishing licenses, and the subsequent safety inspection, were not

unreasonable, and thus did not violate either the state or federal constitutions.

Commonwealth’s Br. at 4-12. The Commonwealth points out Officer Smolko’s stop

of Defendant’s boat to conduct a fishing license check was not unreasonable as it

was his duty as a WCO and is required by the Code. Id. at 12-13. Similarly, the

4 The Commonwealth uses the excuse of safety as the crux of its argument to justify

intrusions on my liberty and privacy. Did the Commonwealth create a hazard to

both myself and my passengers as well as the [WCOs] on board my vessel?

5 It is not Contended that the search was done absent of reasonable suspicion and

probable cause. Did the stop and search conducted of my boat meet the criteria of

being a systematic check rather than an overreach of law enforcement done at the

discretion of the officers in the [field]?

6 Based on the testimony found credible by the lower court of the Commonwealth

witness [Officer Smolko], did the Commonwealth contradict itself so egregiously

as to leave the question of fact indeterminable?

7 Should the Commonwealth Witnesses and the Prosecutors be prosecuted for the

egregious behavior and blatant disregard for the rule of law based on the

contradictory testimony of the Commonwealth witness and inability to honor

his/their Constitutional oath?

8 Did the Commonwealth prove that a less intrusive method of ensuring boater

safety is not practical?

9 Did Officer Smolko ignore previous edicts set forth by both the lower courts and

the Superior Court in conducting searches/inspections of boats that lacked probable

cause?

Defendant’s Br. at 5.

5

Commonwealth asserts the safety equipment inspection of Defendant’s boat was not

unreasonable as boaters are required to possess certain safety equipment and the

Code sets forth the powers and duties of the WCOs, which includes stopping and

boarding any boat to inspect for compliance. Id. at 13-15. Finally, the

Commonwealth contends it produced sufficient evidence to prove Defendant failed

to have the required number of wearable PFDs aboard his boat. Id. at 17.

DISCUSSION

Suppression Motion

First, we consider Defendant’s challenge to the trial court’s denial of his

suppression motion. When addressing a challenge to the denial of a suppression

motion, our review is limited to determining whether the trial court’s factual findings

are supported by the record and whether the legal conclusions drawn from those

facts are correct. Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal

quotations and citations omitted). Because the Commonwealth prevailed before the

trial court, we consider only the Commonwealth’s evidence and so much of the

Defendant’s evidence as is uncontradicted. Id. So long as the trial court’s factual

findings are supported by the record, we are bound by those findings and will reverse

the trial court’s decision only if its legal conclusions are erroneous. Id. To the extent

we address issues of law, our review is de novo. Commonwealth v. Beaman, 880

A.2d 578, 581 (Pa. 2005) (citation omitted). In other words, we “are not bound by

the legal conclusions of the . . . lower court[].” EQT Prod. Co. v. Borough of

Jefferson Hills, 208 A.3d 1010, 1025 (Pa. 2019) (citation omitted).

Because we are addressing a constitutional challenge, we begin by reviewing

the Fourth Amendment to the United States (U.S.) Constitution, U.S. Const. amend.

6

IV (Fourth Amendment), and its similar state counterpart, article I, section 8 of the

Pennsylvania Constitution, Pa. Const. art. I, § 8. The Fourth Amendment provides:

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

effects, against unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place

to be searched, and the persons or things to be seized.

U.S. Const. amend. IV. Similarly article I, section 8 of the Pennsylvania

Constitution provides:

The people shall be secure in their persons, houses, papers and

possessions from unreasonable searches and seizures, and no warrant

to search any place or to seize any person or things shall issue without

describing them as nearly as may be, nor without probable cause,

supported by oath or affirmation subscribed to by the affiant.

Pa. Const. art. I, § 8.

These constitutional provisions guarantee an individual’s freedom from

unreasonable searches and seizures, but they do so only in areas where an individual

has a protected privacy interest. Commonwealth v. Enimpah, 106 A.3d 695, 699

(Pa. 2014). Where an individual does not have a reasonable and protected

expectation of privacy, neither the Fourth Amendment nor article I, section 8 of the

Pennsylvania Constitution is implicated. Id. Where there is not a reasonable

expectation of privacy in a place, a search or seizure cannot be deemed unreasonable,

even if the police lacked probable cause or a warrant. Commonwealth v. Edwards,

874 A.2d 1192, 1195 (Pa. Super. 2005). There is no dispute in this case that Officer

Smolko did not have reasonable suspicion, probable cause, or a warrant before

approaching Defendant’s boat to conduct a fishing license check or subsequent

safety equipment inspection. Whether an individual has a reasonable expectation of

7

privacy in a boat on the water such that a WCO’s approach and stop of the boat to

conduct a fishing license check or safety equipment inspection, absent reasonable

suspicion, probable cause, or a search warrant, violates the individual’s

constitutionally protected rights, is an issue of first impression in Pennsylvania. We

must determine (1) whether Defendant demonstrated he had a reasonable and

legitimate expectation of privacy which was infringed upon by Officer Smolko and

(2) whether Officer Smolko’s seizure of Defendant was constitutionally

“reasonable.” See Commonwealth v. Kane, 210 A.3d 324, 330 (Pa. Super. 2019)

(citation and bracket omitted).

We begin our analysis by considering Pennsylvania case law related to vehicle

seizures by law enforcement generally. The Pennsylvania Supreme Court has

determined that while individuals have a lesser expectation of privacy in their

vehicles than in their homes, occupants of vehicles do not forfeit all expectations of

privacy. Commonwealth v. Maguire, 215 A.3d 566, 574 (Pa. 2019) (citation

omitted). When a law enforcement officer initiates a vehicle stop, the vehicle, as

well as the driver, are seized for purposes of the state and federal constitutions.

Commonwealth v. Shabezz, 166 A.3d 278, 287 (Pa. 2017) (citation omitted). For

such seizure to be constitutional, it must be reasonable. Id. To determine whether a

seizure that is less intrusive than a traditional arrest is “reasonable,” the Pennsylvania

Supreme Court has directed reviewing courts to apply the Brown v. Texas, 443 U.S.

47 (1979), three-prong balancing test. Beaman, 880 A.2d at 582. Under this test,

the court weighs “the gravity of the public concerns served by the seizure, the degree

to which the seizure advances the public interest, and the severity of the interference

with individual liberty.” Brown, 443 U.S. at 50. Under this standard, to be deemed

“reasonable,” the seizure ordinarily must have been supported by reasonable

8

suspicion, based upon objective facts, that the individual was involved in criminal

activity. Id. at 51.

However, while the general rule requires law enforcement have, at least,

reasonable suspicion to initiate a seizure, the existence of individualized suspicion

is not a requirement in every situation. Rather, Pennsylvania acknowledges an

exception to this general rule where law enforcement seizures are designed to serve

a governmental “special need.” Beaman, 880 A.2d at 582. For example, both the

United States Supreme Court and the Pennsylvania Supreme Court have recognized,

under some circumstances, the constitutionality of roadblocks and checkpoints,

which effectively constitute suspicionless seizures.

In Michigan Department of State Police v. Sitz, 496 U.S. 444, 451 (1990), the

United States Supreme Court determined driving under the influence roadblocks

constitute a reasonable means of advancing the vital public interest in reducing

impaired driving deaths and injuries, while they involve only a modest intrusion on

the privacy and liberty of motorists. Therefore, the Court concluded that such

checkpoints do not offend the Fourth Amendment. Id. Similarly, the Pennsylvania

Supreme Court has held “systematic, non-discriminatory, non-arbitrary checkpoints

do not offend the Pennsylvania Constitution.” Commonwealth v. Worthy, 957 A.2d

720, 724–25 (Pa. 2008) (citations omitted). Specifically, in Commonwealth v.

Blouse, 611 A.2d 1177, 1180 (Pa. 1992), the Pennsylvania Supreme Court concluded

that checkpoints instituted to detect registration, licensing, and equipment violations

are consistent with article I, section 8 of the Pennsylvania Constitution, so long as

they are conducted in conformance with required guidelines. The Court noted

substantial compliance with these guidelines, as outlined below, is all that is required

to reduce the intrusiveness on the individual to a constitutionally acceptable level:

9

[T]he conduct of the roadblock itself can be such that it requires only a

momentary stop to allow the police to make a brief but trained

observation of a vehicle’s driver, without entailing any physical search

of the vehicle or its occupants. To avoid unnecessary surprise to

motorists, the existence of a roadblock can be so conducted as to be

ascertainable from a reasonable distance or otherwise made knowable

in advance. The possibility of arbitrary roadblocks can be significantly

curtailed by the institution of certain safeguards. First the very decision

to hold a . . . roadblock, as well as the decision as to its time and place,

should be matters reserved for prior administrative approval, thus

removing the determination of those matters from the discretion of

police officers in the field. In this connection it is essential that the route

selected for the roadblock be one which, based on local experience, is

likely to be travelled by intoxicated drivers. The time of the roadblock

should be governed by the same consideration. Additionally, the

question of which vehicles to stop at the roadblock should not be left to

the unfettered discretion of police officers at the scene, but instead

should be in accordance with objective standards prefixed by

administrative decision.

Id. Therefore, Pennsylvania law acknowledges, under certain conditions,

suspicionless seizures of vehicles do not necessarily violate the Fourth Amendment

or article I, section 8 of the Pennsylvania Constitution.

While the courts of this Commonwealth have not yet had the opportunity to

determine whether the Fourth Amendment and article I, section 8 of the

Pennsylvania Constitution prohibit a WCO from approaching and detaining a boat

on the water to conduct a fishing license check and safety equipment inspection

absent reasonable suspicion, probable cause, or a search warrant, other jurisdictions

have examined similar issues. Although we are not bound by decisions of courts of

other jurisdictions, when confronted with a question unaddressed by the courts of

this Commonwealth, we may use those decisions for guidance so long as they are

compatible with Pennsylvania law. M4 Holdings, LLC v. Lake Harmony Ests. Prop.

Owners’ Ass’n, 237 A.3d 1208, 1221 n.14 (Pa. Cmwlth. 2020) (citation omitted).

10

First, we examine the Eleventh Circuit Court of Appeals’ decision in United

States v. Thompson, 928 F.2d 1060 (11th Cir. 1991). In Thompson, the United States

Coast Guard boarded the defendant’s boat to conduct a documents and safety

inspection. Id. While conducting the inspection, the Coast Guard found cocaine in

a storage compartment. Id. Following his indictment for charges related to the

cocaine, the defendant filed a motion to suppress arguing the Coast Guard’s search

of his boat violated the Fourth Amendment’s prohibition against unreasonable

searches and seizures. Id. In affirming the lower court’s denial of his suppression

motion, the court wrote: “[A]t sea, a person’s expectation of privacy may be severely

restricted compared with expectations of privacy on land.” Id. at 1064-65. The court

noted this lowered expectation of privacy is, at least in part, due to the statutory

authorization of the Coast Guard to board boats and conduct document and safety

inspections under 14 U.S.C. § 89(a),5 even without suspicion of criminal activity.

5

Section 89(a), titled Law Enforcement, provides:

The Coast Guard may make inquiries, examinations, inspections, searches,

seizures, and arrests upon the high seas and waters over which the United States

has jurisdiction, for the prevention, detection, and suppression of violations of laws

of the United States. For such purposes, commissioned, warrant, and petty officers

may at any time go on board of any vessel subject to the jurisdiction, or to the

operation of any law, of the United States, address inquiries to those on board,

examine the ship’s documents and papers, and examine, inspect, and search the

vessel and use all necessary force to compel compliance. When from such inquiries,

examination, inspection, or search it appears that a breach of the laws of the United

States rendering a person liable to arrest is being, or has been committed, by any

person, such person shall be arrested or, if escaping to shore, shall be immediately

pursued and arrested on shore, or other lawful and appropriate action shall be taken;

or, if it shall appear that a breach of the laws of the United States has been

committed so as to render such vessel, or the merchandise, or any part thereof, on

board of, or brought into the United States by, such vessel, liable to forfeiture, or

so as to render such vessel liable to a fine or penalty and if necessary to secure such

fine or penalty, such vessel or such merchandise, or both, shall be seized.

(Footnote continued on next page…)

11

Id. Because the statute expressly granted the Coast Guard authority to board boats

and conduct inspections, the court concluded that an individual could not have a

reasonable expectation of privacy in any area the Coast Guard was authorized to

inspect and safety check. Id. While the court noted the Coast Guard would not be

permitted to rummage through private areas, knapsacks, or duffel bags, it pointed

out that because the defendant did not know where the safety equipment was located,

the Coast Guard could actively search for the safety equipment in various parts of

the boat, including the storage compartment which contained items subject to

inspection like life jackets and sails. Id. at 1065.

Next, in Schenekl v. State, 996 S.W.2d 305, 308 (Tex. App. 1999), the Court

of Appeals of Texas, Fort Worth, addressed a similar issue. A game warden was

patrolling a lake in his marked patrol boat when he observed the defendant’s boat

pulling out of the marina. Id. By authority of Texas’s Parks and Wildlife Code,6 the

warden, without reasonable suspicion or probable cause, stopped and boarded the

defendant’s boat for a water safety check. Id. After observing the defendant during

the safety check, the warden requested the defendant submit to sobriety tests, which

ultimately led the warden to arrest the defendant for boating while intoxicated. Id.

The defendant filed a motion to suppress before the trial court asserting the Parks

and Wildlife Code’s provision permitting a warden to stop and board a boat for a

water safety check without reasonable suspicion or probable cause violated the

Fourth Amendment’s prohibition against unreasonable searches and seizures. In

14 U.S.C. § 89(a).

6

Tex. Parks & Wild. Code §§ 1.001-355.003 (1975).

12

affirming the lower court’s denial of the defendant’s suppression motion, the court

noted:

The Fourth Amendment does not prohibit all searches and seizures,

only those that are deemed unreasonable . . . . However, under certain

limited circumstances, searches and seizures conducted without

individualized suspicion may be reasonable under the Fourth

Amendment.

Id. at 309. While the court concluded the defendant had an expectation of privacy

in his boat, it observed, in comparison to a home, the expectation of privacy was

diminished. Id. at 310. The court explained:

The scope and length of the detention here were not intrusive. The

enforcement provision authorizes detention only for the purpose of

ensuring compliance with the registration and safety requirements. The

intrusion is minimal in scope because the search may only be directed

at the safety items listed in the statute. Further, while the boat must

carry several safety and registration items, only a brief visual inspection

is necessary to determine compliance.

Id. The court ultimately concluded that in balancing the state’s “substantial interest

in recreational water safety against the intrusion involved, the enforcement provision

of [the Parks and Wildlife Code did] not authorize searches and seizures that violate

the Fourth Amendment.” Id. at 311.

Similarly, in State v. Pike, 532 S.E.2d 543 (N.C. App. 2000), a wildlife

resource commission officer stopped a boat to conduct a safety check. At the time

of the stop, the officer did not observe any illegal activity or activity which would

violate the rules or regulations of the wildlife resources commission. Id. at 545. The

officer never boarded the boat, but following the safety inspection, the officer

arrested the defendant for operating a motor vessel while impaired. Id. The

defendant filed a motion for suppression, which the trial court granted concluding

13

that the stop of defendant’s boat was not based upon any reasonable suspicion of

illegal activity and thus violated the defendant’s Fourth Amendment right against

unreasonable search and seizure. Id. The state appealed. The Court of Appeals of

North Carolina reversed noting that while the defendant had an expectation of

privacy in his boat, it was a diminished one. Id. Considering the practicalities of

the officer’s stop, the court explained:

[I]t is impractical as well as perhaps, impossible to check that a vessel

is complying with statutory safety regulations if the State is unable to

verify that the requirements are being met while the vessel is at sea.

Thus, we find it necessary that vessels be stopped in order to do safety

checks (for fire extinguishers, life jackets and the like). . . . [T]he

officers here never boarded defendant’s vessel to inspect it. Thus, their

interference with defendant’s right to privacy was even less intrusive

than in Schenekl. The question then becomes whether, in conducting

their inspection of defendant’s vessel, the officers impermissibly

detained defendant. We think not.

Id. at 548 (emphasis in original). The court ultimately concluded that under the

relevant statute authorizing an officer to stop a boat without probable cause for the

purpose of inspection, the officers’ stop was reasonable. Id. at 549.

Furthermore, in United States v. Villamonte-Marquez, 462 U.S. 579 (1983),

the United States Supreme Court addressed whether customs officials violated the

Fourth Amendment when they boarded a boat without any suspicion of wrongdoing

to inspect documents, when acting under 19 U.S.C. § 1581, which provides:

Any officer of the customs may 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 . . . and to this end may hail and stop such

vessel . . . and use all necessary force to compel compliance.

The Court explained its conclusion that the government’s boarding of the boat did

not violate the Fourth Amendment as follows:

14

[H]ere[,] the First Congress clearly authorized the suspicionless

boarding of vessels, reflecting its view that such boardings are not

contrary to the Fourth Amendment; this gives the statute before us an

impressive historical pedigree. 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 . . . are

substantial; the type of intrusion made in this case, while not minimal,

is limited. All of these factors lead us to conclude that the action of the

. . . officers in stopping and boarding the [vessel] was “reasonable,” and

was therefore consistent with the Fourth Amendment.

Id. at 592-93 (internal citations omitted).

Next, we turn to the law governing the authority of WCOs in Pennsylvania.

The Commission’s purpose is to administer and enforce the Code and other

Commonwealth laws relating to the “encouragement, promotion and development

of the fishery interests,” the “protection, propagation and distribution of fish,” the

“management of boating and the operation of boats,” and the “encouragement,

promotion and development of recreational boating.” 30 Pa.C.S. § 321. The

Commission promulgates the rules and regulations for the use and protection of the

lands and waters of the Commonwealth as it deems necessary or in the best interest

of the Commonwealth. 30 Pa.C.S. § 741(a). Additionally, the Commission is

authorized to implement regulations to “provide for the operation and navigation of

boats, including the rules of the road for boating, the ways, manner, methods and

15

means of boating, [and] the management of boats and the use thereof.” 30 Pa.C.S.

§ 5123(a). In relevant part, the Commission’s regulations may relate to the

“[p]rotection of the health and safety of persons on boats, towed by boats, or on, in

or along the waters of this Commonwealth[,]” as well as the “[e]quipment

requirements for boats, operators of boats, passengers on boats and persons towed

or pulled by boats.” 30 Pa.C.S. § 5123(a)(1). To enforce the Code and the

Commission’s regulations, the Commission appoints WCOs with law enforcement

powers who have the power and duty to “[e]nforce all laws of this Commonwealth

relating to fish and watercraft.” 30 Pa.C.S. § 901(a)(1).

Regarding the Commonwealth’s fishing license requirements, no person over

16 years of age is permitted to fish in any waters without first obtaining a fishing

license, which is required to be kept about the person while fishing and shown upon

the request of any WCO. 30 Pa.C.S. § 2703. The license holder must also produce

additional identification upon a WCO’s request. Id. Thus, WCOs are statutorily

authorized to ensure any individual fishing in the Commonwealth’s waters has a

valid fishing license. See id.

Further, regarding safety equipment inspections, Section 901(a)(10) of the

Code provides WCOs with authority to stop and board boats to inspect for

compliance with the Code’s provisions dealing with boats and boating. 30 Pa.C.S.

§ 901(a)(10). This section provides an exception, specifying when a boat is lying at

its regular mooring or berth,7 a WCO cannot board without the owner’s consent or a

search warrant. Id.

7

According to Boats.net’s website, a “mooring is a catch-all term that can be used any time a boat

is secured to any permanent fixture. It can also refer to the area of water used for storing boats by

securing them to fixtures on the water’s bed.” Berthing is a term used “to differentiate and describe

the type of mooring that occurs. It generally refers to smaller watercraft moored for an indefinite

(Footnote continued on next page…)

16

Here, Defendant argues Officer Smolko violated his state and federal

constitutional rights against unreasonable searches and seizures. Specifically,

Defendant accuses the Commonwealth of believing that “simply because [he]

choose[s] to captain a boat that [he] has foregone [his] right to a reasonable

expectation of privacy.” Defendant’s Br. at 8.8 While we agree Defendant had an

expectation of privacy in his boat, we determine that, consistent with Pennsylvania

law regarding vehicles generally, Defendant’s expectation of privacy on his boat was

a diminished one.

In light of the statutory authority the legislature granted to WCOs, Defendant

has failed to demonstrate that he had a reasonable or legitimate expectation of

privacy infringed upon by Officer Smolko. There is no statutory provision in the

Code that requires a WCO have reasonable suspicion, probable cause, or a search

warrant to conduct a fishing license check. The statutory language clearly requires

people who are fishing to show their license and identification to a WCO upon

request. Similarly, there is no statutory provision in the Code requiring a WCO have

reasonable suspicion, probable cause, or a search warrant to conduct a safety

period of time in an allocated space within a dock.” See https://www.boats.net/blog/mooring-

docking-berthing-anchoring-explained#:~:text=Whenever%20a%20boat%20is%20attached,secu

red%20to%20any%20permanent%20fixture (last visited 2/5/2024).

8

Defendant contends that because the boat contains both a bed and a lavatory, any “reasonable

person would expect privacy in their own bed and bathroom.” Defendant’s Br. at 8. However, we

accept the facts as found by the trial court so long as they are supported by the record. See Jones,

988 A.2d at 654. Thus, insofar as Defendant’s arguments rely on factual assertions that were not

found credible by the trial court, we reject those arguments. Because the trial court found credible

Officer Smolko’s testimony that no WCOs boarded Defendant’s boat at any time during the

encounter, we need not address any assertion that WCOs infringed on Defendant’s privacy by

entering bedroom or lavatory areas of Defendant’s boat.

17

equipment inspection.9 We find instructive the legislature’s decision to carve out an

exception to the general rule mandating that when a boat is at its regular mooring or

berth, a WCO cannot board without consent of the owner or a search warrant. See

30 Pa.C.S. § 901(a)(10). Otherwise, the Code grants WCOs the authority to “stop

and board boats for the purpose of inspection” to ensure compliance with the Code

and its related regulations. Id. In contrast, for violations unrelated to safety

inspections, the Code requires a WCO to have probable cause to stop and search a

boat. 30 Pa.C.S. § 901(a)(5). This reflects our legislature’s clear authorization of

the suspicionless boarding of boats to conduct safety equipment inspections.

Given the legislature’s express grant of statutory authority for WCOs to check

fishing licenses, we, like the courts in Thompson, Schenekl, Pike, and Villamonte-

Marquez, conclude it would be unreasonable for any individual fishing in the

Commonwealth’s waters to expect privacy from WCOs who approach to conduct a

fishing license check. Likewise, because of the WCOs’ express statutory authority

to board boats to conduct safety equipment inspections, it would be unreasonable for

anyone to expect privacy in areas of the boat that are subject to a safety equipment

inspection. Because Defendant had no reasonable expectation of privacy from the

temporary detention of his boat while Officer Smolko conducted a fishing license

check and safety equipment inspection, where no WCOs boarded Defendant’s boat

or infringed on any areas of the boat where Defendant may have had a reasonable

expectation of privacy, there was no “unreasonable search or seizure” in violation of

either the Fourth Amendment or article I, section 8 of the Pennsylvania Constitution.

Moreover, even if we accepted Defendant’s assertion that he had a reasonable

expectation of privacy from Officer Smolko’s detention to check for fishing licenses

9

This is in contrast to 30 Pa.C.S. § 901(a)(5) which requires a WCO have probable cause that a

violation of Title 30 has occurred in order to conduct a stop to search vehicles or boats.

18

and conduct a safety equipment inspection, Defendant’s claim would still fail. In

considering whether Officer Smolko’s actions violated Defendant’s right to be free

from unreasonable search and seizure, we conduct a balancing analysis wherein the

intrusion on Defendant is balanced against the government’s promotion of legitimate

interests. Blouse, 611 A.2d at 1178. In balancing these opposing interests, our

primary concern is protecting individuals from arbitrary invasions at the unrestricted

discretion of law enforcement officers in the field. Id.

The Commonwealth has a legitimate interest in preserving its natural

resources, as well as in the health, safety, and well-being of its citizens, including its

boaters. See Farmer v. United Brotherhood of Carpenters, 430 U.S. 290, 302-03

(1977) (noting the state has a substantial interest in protecting its citizens). Here,

Defendant had individuals fishing on his boat in plain view of WCOs patrolling Lake

Erie. Officer Smolko’s approach and request to view fishing licenses, without

boarding Defendant’s boat, was minimally intrusive and in furtherance of his duty

as a WCO to ensure compliance with the Code. Likewise, Officer Smolko’s safety

equipment inspection of Defendant’s boat was minimally intrusive. Even though by

statutory law, the WCOs had the power to board Defendant’s boat, they chose not to

do so. Rather, Officer Smolko stayed on his patrol boat and requested Defendant

show him the equipment for inspection. The entire interaction between Officer

Smolko and Defendant included a brief visual inspection, which lasted less than 40

minutes. Thus, the scope and the length of the detention were minimally intrusive.

We conclude Officer Smolko’s brief detention of Defendant’s boat to conduct a

fishing license check and safety equipment inspection constituted a reasonable

means of advancing the vital public interest in preserving the Commonwealth’s

19

natural resources and ensuring boater safety, while involving only a minimal

intrusion on Defendant’s privacy or liberty.

We reject Defendant’s assertions that there are “less intrusive methods” of

ensuring boater safety than the safety equipment inspection conducted in this case.

See Defendant’s Br. at 17. Officer Smolko conducted the safety equipment

inspection in a minimally intrusive manner. Furthermore, by providing a PFD to

Defendant so that he and his passengers could continue to boat, Officer Smolko

made an effort to be less intrusive and disruptive to Defendant’s day. To that end,

this Court cannot envision any practical, less intrusive, way for WCOs to comply

with their statutory duty to conduct safety equipment inspections of boats on the

water than to briefly detain those boats to ensure they comply with safety equipment

requirements. A WCO must necessarily detain a boat on the water in order to

conduct fishing license checks and safety equipment inspections. In balancing the

Commonwealth’s legitimate interests in the safety of its citizens, including those

enjoying Pennsylvania’s waterways, against the minimal intrusion of Defendant’s

brief detention, Officer Smolko’s stop and detention of Defendant’s boat while he

conducted the fishing license check and safety equipment inspection was reasonable.

Because Officer Smolko did not infringe into any area where Defendant

maintained a reasonable expectation of privacy, the protections of the Fourth

Amendment and article I, section 8 of the Pennsylvania constitution were not

triggered. Furthermore, even if we were to conclude Defendant maintained a

reasonable expectation of privacy from Officer Smolko’s brief detention, Officer

Smolko’s intrusion was minimal when balanced against the Commonwealth’s

legitimate interest in preserving its natural resources, as well as ensuring the safety

of its citizens utilizing Pennsylvania’s waterways. Therefore, we conclude the

20

WCO’s brief, suspicionless detention of Defendant’s boat on the water to conduct a

fishing license check and safety equipment inspection did not violate Defendant’s

rights against unreasonable search and seizure under either the Fourth Amendment

or article I, section 8 of the Pennsylvania Constitution. Accordingly, the trial court

did not err in denying Defendant’s suppression motion.

Sufficiency of the Evidence

Next, we address Defendant’s challenge to the sufficiency of the evidence

supporting his conviction. Defendant argues the Commonwealth failed to meet its

burden of proof. Specifically, Defendant contends that because Officer Smolko did

not board his boat, Officer Smolko failed to inspect the safety equipment and failed

to prove the number of PFDs aboard his boat.10 Defendant’s Br. at 7.

We review a sufficiency of the evidence claim as follows:

We assess the evidence and all reasonable inferences drawn therefrom

in the light most favorable to the verdict-winner. We must determine

whether there is sufficient evidence to enable the fact-finder to have

found every element of the crime beyond a reasonable doubt. In

applying the above test, we may not weigh the evidence and substitute

our judgment for that of the fact[-]finder. In addition, we note that the

facts and circumstances established by the Commonwealth need not

preclude every possibility of innocence. Any doubts regarding a

defendant’s guilt may be resolved by the fact-finder unless the evidence

is so weak and inconclusive that as a matter of law no probability of

fact may be drawn from the combined circumstances. The

Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial

evidence. Moreover, in applying the above test, the entire record must

be evaluated and all evidence actually received must be considered.

10

The irony of this argument does not escape the Court considering, in the same breath, Defendant

wanted an even lesser intrusion.

21

Commonwealth v. Bowens, 265 A.3d 730, 740-41 (Pa. Super. 2021), appeal denied,

279 A.3d 508 (Pa. 2022) (citation omitted). The Commonwealth bears the burden

of proof beyond a reasonable doubt of all the elements of a crime. Commonwealth

v. Hilbert, 382 A.2d 724, 729 (Pa. 1978). Further, the burden of proof beyond a

reasonable doubt applies to summary offenses just as it does to other criminal

charges. Commonwealth v. A.D.B., 752 A.2d 438, 443 (Pa. Cmwlth. 2000) (citation

omitted).

Any person who violates a rule or regulation under the Code commits a

summary offense. See 30 Pa.C.S. § 2102. In this case, Officer Smolko cited

Defendant for violating Section 97.1 of the Commission’s Regulations, 58 Pa. Code

§ 97.1. In relevant part, Section 97.1(b) of the Commission’s Regulations provides

“[a] person may not use a boat unless at least one wearable PFD is on board for each

person.” Id. The regulation defines a PFD as “[a] life preserver that is approved by

the Commandant of the United States Coast Guard under 46 C.F.R Part 160 (relating

to lifesaving equipment).” 58 Pa. Code § 97.1(a). Additionally, Section 97.1(c) of

the Commission’s Regulations indicates a person “may not use a boat 16 feet or

more in length unless one throwable PFD is on board in addition to the total number

of PFDs required [for each person aboard the boat].” 58 Pa. Code § 97.1(c).

Regarding “throwable” versus “wearable” PFDs, the regulation specifies a

throwable PFD is “intended to be thrown to a person in the water.” 58 Pa. Code §

97.1(a). A PFD which is marked as throwable, Type IV, or Type V with Type IV

performance, is considered a throwable PFD. Id. Meanwhile, a wearable PFD is

“intended to be worn or otherwise attached to a person’s body. A PFD marked as

wearable, Type I, Type II, Type III, or Type V with Type (I, II, or III) performance

22

is considered a wearable PFD.” Id. The regulation specifies that “[u]nless

specifically marked otherwise, a wearable PFD is not a throwable PFD.” Id.

Here, considering the trial court’s express credibility determinations and

viewing the evidence in the light most favorable to the Commonwealth, Officer

Smolko’s testimony established Defendant had four passengers on board his boat for

a total of five people, but only four wearable PFDs available. Because Section

97.1(b) of the Commission’s Regulations requires a boater have at least one

wearable PFD on board for each person on the boat, the trial court properly found

each element of the offense charged was supported by sufficient evidence to prove

Defendant guilty beyond a reasonable doubt.

Moreover, the trial court properly rejected Defendant’s argument the

throwable PFD on his 22-foot boat should have counted as a wearable PFD. Because

of the size of his boat and number of individuals aboard, the regulations required

Defendant have five wearable PFDs and one throwable PFD aboard his boat, and the

regulation specifies the two types of PFDs are not interchangeable. See 58 Pa. Code

§ 97.1(a)-(c). Therefore, the Commonwealth met its burden of proof, and the trial

court did not err or abuse its discretion by finding Defendant guilty of violating the

Code by having an insufficient number of wearable PFDs aboard his boat.

CONCLUSION

The trial court’s factual findings are supported by the record, and we find no

error in its legal analysis. The trial court properly found the Commonwealth

produced evidence demonstrating Defendant lacked a reasonable expectation of

privacy from the brief detention by Officer Smolko to conduct a fishing license

check and safety equipment inspection. Further, when balanced against the

legitimate interests of the Commonwealth, any intrusion on Defendant’s expectation

23

of privacy was minimal. Therefore, the trial court properly denied Defendant’s

motion to suppress. Further, the Commonwealth presented sufficient evidence to

prove Defendant guilty beyond a reasonable doubt. Accordingly, we affirm the trial

court’s judgment of sentence.

______________________________

STACY WALLACE, Judge

24

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

v. : No. 473 C.D. 2020

:

Frederick W. Karash, :

Appellant :

ORDER

AND NOW, this 6th day of February 2024, the Court of Common Pleas of

Erie County’s June 24, 2019 judgment of sentence is hereby AFFIRMED.

______________________________

STACY WALLACE, Judge