                            [J-112-2016] [MO: Todd, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               WESTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                 :   No. 11 WAP 2016
                                              :
                    Appellee                  :   Appeal from the Order of the Superior
                                              :   Court entered December 21, 2015 at
                                              :   No. 1829 WDA 2014, affirming the
             v.                               :   Judgment of Sentence of the Court of
                                              :   Common Pleas of Erie County entered
                                              :   October 20, 2014 at No. CP-25-CR-
VICTORIA LIVINGSTONE,                         :   0002750-2013.
                                              :
                    Appellant                 :   ARGUED: November 2, 2016


                                 DISSENTING OPINION


JUSTICE MUNDY                                     DECIDED: NOVEMBER 27, 2017
      I respectfully dissent from the Majority’s judgment in this case. Like the trial court

and the Superior Court, I conclude that Trooper Frantz’s initial interaction with Appellant

amounted to a mere encounter.         Therefore, I would not address the community

caretaking exception, and would affirm the order of the Superior Court.

      As the Majority acknowledges, the Fourth Amendment generally presents two

distinct inquires. First, whether a search or seizure was effectuated, and second, if

there was a search or seizure, whether it was constitutionally reasonable. See Majority

Op. at 12. The instant appeal only presents us with the first question.

      The standard as to whether a seizure has occurred is an objective one, looking at

the totality of the circumstances. Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014).

This inquiry “is ultimately centered on whether the suspect has in some way been

restrained by physical force or show of coercive authority.” Id. (citation omitted). The

Supreme Court of the United States has observed that “[e]xamples of circumstances
[include] the threatening presence of several officers, the display of a weapon by an

officer, some physical touching of the person of the citizen, or the use of language or

tone of voice indicating that compliance with the officer’s request might be compelled.”

United States v. Mendenhall, 446 U.S. 544, 554 (1980) (plurality) (citations omitted). In

addition, the Court has held that “when a person has no desire to leave for reasons

unrelated to the police presence, the coercive effect of the encounter can be measured

better by asking whether a reasonable person would feel free to decline the officers’

requests or otherwise terminate the encounter[.]” Brendlin v. California, 551 U.S. 249,

255 (2007) (internal quotation marks and citations omitted).

       In Commonwealth v. Au, 42 A.3d 1002 (Pa. 2012), an officer encountered the

defendant while on patrol in the “early morning hours” when the officer saw a vehicle

parked in a business’s parking lot. Id. at 1003. The officer testified that it was unusual

to see a car parked in that location at that hour, so he pulled his marked police car up

next to the vehicle and used his headlights to illuminate the passenger side.           Id.

However, the officer did so without blocking the vehicle’s path to leave the premises. Id.

The officer then approached the vehicle with a flashlight and asked Au for identification.

Id. When Au opened the glove compartment to retrieve his identification, he revealed

two baggies of marijuana. Id. at 1004.

       Relevant to this appeal, Au maintained that his interaction with the officer was an

investigative detention, and the Superior Court agreed. Id. at 1004-05. This Court

reversed, concluding that the circumstances indicated a mere encounter, and that the

officer’s request for Au’s identification did not elevate that mere encounter to a seizure.

Id. at 1009. We explained that the officer did not “activate the emergency lights on his

vehicle; position his vehicle so as to block the car that Appellee was seated in from

exiting the parking lot; brandish his weapon; make an intimidating movement or




                             [J-112-2016] [MO: Todd, J.] - 2
overwhelming show of force; make a threat or a command; or speak in an authoritative

tone.” Id. at 1008 (internal citations omitted). We continued by noting, “[i]n terms of the

use of the arresting officer’s headlights and flashlight, this was in furtherance of the

officer’s safety, and we conclude it was within the ambit of acceptable, non-escalatory

factors.” Id.

       The only substantive difference between this case and Au is that Trooper Frantz

used his emergency lights instead of his headlights as a safety measure. The Majority

identifies no other distinguishing factor in its mere encounter analysis. See generally

Majority Op. 11-22.    Therefore, the inquiry comes down to whether or not Trooper

Frantz’s use of his emergency lights transformed what would otherwise be a mere

encounter into an investigative detention.

       I conclude it does not. As this Court noted in Au, the use of headlights to peer

into the passenger compartment of the vehicle was rooted in safety. Au, 42 A.3d at

1008. Here, Trooper Frantz activated his emergency lights as a safety precaution, not

just for his own safety, but for that of other motorists on Interstate 79 as well.1 This is

consistent with the Superior Court’s conclusion in this case, as well as in past cases.

See Super. Ct. Op. at 10 (stating, “[h]ere . . . the suppression court, considering the

totality of circumstances, concluded the trooper approached the vehicle to conduct a

safety check[]”); Commonwealth v. Kendall, 976 A.2d 503, 508 (Pa. Super. 2009)

(stating “it is reasonable for an officer to activate overhead lights to ensure his or her

own safety as well as the safety of the driver, and to notify passing vehicles of their

1
   Indeed, the Motor Vehicle Code generally requires drivers passing an “emergency
response area” to “pass in a lane not adjacent to that of the emergency response area,
if possible[.]” 75 Pa.C.S. § 3327(a)(1). However, “if passing in a nonadjacent lane is
impossible, illegal or unsafe, [the motorist must] pass the emergency response area at a
careful and prudent reduced speed reasonable for safely passing the emergency
response area.” Id. § 3327(a)(2).



                             [J-112-2016] [MO: Todd, J.] - 3
presence[]”); Commonwealth v. Conte, 931 A.2d 690, 694 (Pa. Super. 2007) (stating,

“[i]n a nighttime, highway setting . . . the citizen would interpret the officer’s activation of

overhead lights not as a signal of detention, but rather . . . as a means to both alert

other motorists of a roadside emergency and reassure the stranded citizen about the

officer’s identity[]”); Commonwealth v. Johonoson, 844 A.2d 556, 562 (Pa. Super.)

(stating that the activation of emergency lights “serves several functions, including

avoiding a collision on the highway, and potentially calling additional aid to the scene . .

. [and] signals to the motorist that it is actually a police officer (rather than a potentially

dangerous stranger) who is approaching[]”), appeal denied, 863 A.2d 1144 (Pa. 2004).

       This is also consistent with notions of common sense and roadside safety. Law

enforcement officers have a duty “to help motorists who are stranded or who may

otherwise need assistance.” Commonwealth v. Fuller, 940 A.2d 476, 479 (Pa. Super.

2007) (citation omitted). In addition, courts have consistently recognized the inherent

dangers of traffic stops. See generally Pennsylvania v. Mimms, 434 U.S. 106, 110

(1977) (per curiam).2 However, the Majority’s per se rule forces an officer to choose

between two equally hazardous scenarios. First, the officer keeps the emergency lights

off, pulls up behind the vehicle, and approaches the driver in the dark. Second, the

officer declines to intervene at all, and keeps driving down the highway. The first option

would require an officer to ignore the obvious safety risks inherent in traffic stops; likely

frighten or alarm the driver, who may not recognize it is law enforcement as opposed to

a stranger approaching; and needlessly fail to alert passing motorists of the presence of

2
  Indeed, according to the Federal Bureau of Investigation’s 2015 statistics, six law
enforcement officers were “feloniously killed” during traffic stops or pursuits and 3,972
were assaulted. In addition, seven officers were accidentally killed during traffic stops,
traffic pursuits, directing traffic or similar duties. See About Law Enforcement Officers
Killed     and      Assaulted,       2015,      FEDERAL    BUREAU    OF    INVESTIGATION,
https://ucr.fbi.gov/leoka/2015 (last visited May 26, 2017).



                               [J-112-2016] [MO: Todd, J.] - 4
an emergency vehicle positioned on a busy interstate highway. Furthermore, it would

be a dereliction of duty for an officer to keep driving past a car pulled over on the side of

an interstate at night without, at a minimum, ascertaining whether those in the vehicle

required help. I would not force law enforcement officials to make such a choice when

striving to carry out their duties.

       A police car’s emergency lights serve multiple purposes. They can be used to

signal a vehicle to pull over and stop, or they can signal traffic to clear a path and allow

police vehicles to pass when they are responding to an emergency.                    In any

circumstance, they no doubt serve to identify the vehicle as one being operated by law

enforcement; the identification would certainly be met with relief by a stranded motorist

who is being approached by a vehicle at night.

       In this case, the lights were used both to signal to Appellant that assistance had

arrived if needed, and for other traffic on Interstate 79 to go around the two cars.

Several state courts have correctly noted that whether the activation of emergency

lights escalates the encounter to a seizure depends on the totality of the circumstances

in each individual case. See, e.g., State v. Thompson, 166 P.3d 1015, 1045 (Kan.

2007) (concluding motorist encounter was consensual and not a seizure, even though

emergency lights were activated, they were used as a safety measure and “not [as] a

clear show of authority[]”); State v. Walters, 934 P.2d 282, 287 (N.M. Ct. App. 1996)

(concluding that driver was not seized where officer pulled beside parked car and

activated emergency lights for safety reasons), cert. denied, 934 P.2d 277 (N.M. 1997);

State v. Halfmann, 518 N.W.2d 729, 731 (N.D. 1994) (holding that no seizure occurred

where motorist pulled over to the side of a highway of her own volition and officer’s use

of emergency lights were “a procedural precaution . . . to maintain traffic flow, and was

not meant to inhibit Halfmann’s liberty[]”); Randall v. State, 440 S.W.3d 74, 79 (Tex.




                               [J-112-2016] [MO: Todd, J.] - 5
App.) (concluding that no seizure occurred where officer pulled behind parked car with

emergency lights activated, noting in particular that the emergency lights were only for

safety purposes, especially since car was already stopped), rev. denied, 382 S.W.3d

389 (Tex. Crim. App. 2012).

      Here, the Majority concludes that a seizure occurred because Trooper Frantz

activated his emergency lights and pulled next to an already stationary vehicle. Majority

Op. at 15. Because we must look at the totality of the circumstances, it is not relevant

solely that Trooper Frantz activated his emergency lights, but under what

circumstances. Here, the unrebutted evidence at the suppression hearing showed that

Trooper Frantz was traveling on a busy interstate highway at night and saw a car pulled

over on the right side of the highway. See N.T., 5/28/14, at 6-7. In addition, the record

showed that Appellant had no desire to keep driving at the time of the encounter

because she was trying to put an address into her vehicle’s GPS system, which is why

her vehicle was running when Trooper Frantz pulled alongside it. Id. at 9. There was

no testimony that Trooper Frantz displayed a weapon, physically touched Appellant’s

person, or used any language or tone of voice that would indicate “compliance with [his]

request might be compelled.” Mendenhall, 446 U.S. at 554. Nor does the record show

the existence of any other coercive effects such that “a reasonable person would [not]

feel free to decline the officers’ requests or otherwise terminate the encounter.”

Brendlin, 551 U.S. at 255. In my view, an officer pulling alongside someone and asking

whether that person is all right, even with emergency lights activated, is not in itself so

coercive as to render the encounter a seizure within the meaning of the Fourth

Amendment. To the contrary, taking all of the circumstances together, one can only

conclude that Trooper Frantz effectuated a mere encounter.




                              [J-112-2016] [MO: Todd, J.] - 6
       In sum, although the Majority identifies the totality of the circumstances standard,

it announces a per se rule that whenever police activate emergency lights during an

encounter, it is automatically a seizure. See Majority Op. at 15. This is incompatible

with settled Fourth Amendment principles. The totality of the circumstances reveals that

Trooper Frantz’s initial interaction with Appellant was nothing more than a mere

encounter.    Therefore, it is unnecessary in this case to consider adoption of the

community caretaking doctrine since Appellant’s motion to suppress was properly

denied on this basis alone.3 Accordingly, I would affirm the order of the Superior Court.

I respectfully dissent.




3
  I agree with both the Majority and Justice Baer that law enforcement officers engage in
community caretaking as an essential and important part of their duties. However, I
disagree that we need to tamper with the Fourth Amendment to create a new exception
in order to recognize this long-standing function of law enforcement, which is clearly
articulated and established in our jurisprudence.



                             [J-112-2016] [MO: Todd, J.] - 7
