by Dale Chappell

When a Pennsylvania state trooper turned on his emergency lights and pulled next to a car parked on the side of the road, it was an “investigative detention” for which he did not have “reasonable suspicion.” In an issue of first impression before the Pennsylvania Supreme Court, the Court held that evidence obtained thereafter had to be tossed.

Victoria Livingstone pulled her car off the road to enter an address into her GPS. A state trooper in a marked police car pulled alongside her car, activated his overhead emergency lights, and signaled for Livingstone to roll down her window. The trooper asked where she was going, and she answered. He then pulled in front of her car, and another police car pulled behind her. Asking for Livingstone’s driver’s license, the trooper said he thought she had been drinking. She had been; her blood alcohol level read .205 when she took a blood test.

Livingstone was charged with DUI. She filed a motion to suppress the blood alcohol content evidence on the basis that she was unlawfully seized in violation of the Fourth Amendment. The trial court denied the motion, and she was convicted after a non-jury trial. She was sentenced to 24 months on probation and monitoring, plus fines. She appealed, arguing that the trooper’s actions constituted an unlawful “investigative detention” because he had no “reasonable suspicion” to detain her. On appeal, the Superior Court disagreed, holding the stop was a “mere encounter” with police. Livingstone appealed to the Pennsylvania Supreme Court, raising the same issue.

The Supreme Court observed that this case hinges upon whether the initial interaction between the trooper and Livingstone was a seizure under the Fourth Amendment or a mere encounter. A person is seized “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544 (1980). The inquiry focuses on whether the officer “by means of physical force or a show of authority” restrained the person’s freedom of movement. In contrast, a mere encounter does not implicate the Fourth Amendment since the person is not seized and is thus free to leave.

For purposes of Fourth Amendment analysis, the Court concluded that the trooper seized Livingstone. It placed particular importance on the activation of the overhead emergency lights, stating, “We simply cannot pretend that a reasonable person, innocent of any crime, would not interpret the activation of emergency lights on a police vehicle as a signal that he or she is not free to leave.” In fact, the Pennsylvania driver’s manual expressly states that activation of the overhead red and blue lights indicates “a police officer wants you to pull over….” Failure to comply is punishable as a second-degree misdemeanor under 75 Pa.C.S. § 3733(a). Thus, a reasonable person would not believe he is free to leave once a police vehicle pulled alongside and activated the overhead lights.

Once the Court concluded that Livingstone was seized, it had to determine whether the warrantless seizure was reasonable, i.e., did an exception apply. The Commonwealth argued that the community caretaking exception to the warrant requirement applied. The U.S. Supreme Court described the exception as police activity for the protection of the public “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Cady v. Dombroski, 413 U.S. 433 (1973). The exception encompasses three specific exceptions: (1) emergency aid, (2) automobile impoundment/inventory, and (3) public servant or safety. All of the exceptions typically require that police actions are motivated by the desire to render aid, rather than investigate criminal activity. The Pennsylvania Supreme Court noted that it previously acknowledged the auto inventory exception but has never addressed the other two exceptions.

The Court adopted the public servant exception but held that in order for it to apply, “police officers must be able to point to specific, objective, and articulable facts that would reasonably suggest to an experienced officer that a citizen is in need of assistance.” The Court further held that police action “must be independent from detection, investigation, and acquisition of criminal evidence” for the exception to apply. Finally, the Court held that “the level of intrusion must be commensurate with the perceived need for assistance.”

After announcing its formulation of the public servant exception under the community caretaking doctrine, the Court applied it to the facts before it. The Court did not doubt the trooper’s claim that he pulled alongside Livingstone’s vehicle to check whether she needed assistance; however, he was “unable to articulate any specific and objective facts that would reasonably suggest” that she was in need of assistance. There was no report of a motorist in need of assistance, no outward signs of problems with her vehicle, the weather was not inclement, and her hazard lights were not on.

Applying the rule of law it had just announced to the facts in this case, the Court concluded “we are constrained to hold that Trooper Frantz’s seizure of Appellant was not justified under the public servant exception. The evidence obtained as a result of the investigative detention should have been suppressed.”

Accordingly, the Pennsylvania Supreme Court reversed the Superior Court order, vacated Livingstone’s judgment of sentence, and remanded for further proceedings.

This case will be of interest to any motorist involved in a case in which at issue is whether or not what occurred was seizure or mere encounter. The Court discussed the issue in great detail and referenced the position held by several states in doing so. It observed that Arkansas, California, Connecticut, Florida, Idaho, Kansas, Maryland, Montana, North Dakota, Oregon, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming have concluded “that a seizure occurs when a police officer pulls his police vehicle, with emergency lights activated, behind a parked or stopped vehicle.” Classification of the encounter as a seizure is critical because Fourth Amendment rights are thus implicated. The Court also engaged in a thorough discussion of the public servant exception to the warrant requirement under the community caretaking doctrine by examining the law in other states. See: Commonwealth v. Livingstone, 2017 Pa. LEXIS 3244 (2017). 

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