                                 [J-112-2016]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                              WESTERN DISTRICT

    SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


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


      Justice Todd announces the Judgment of the Court, and delivers the
      Opinion of the Court with respect to Parts I, II(A), II(B), and III. Chief
      Justice Saylor and Justice Dougherty join the opinion in full. Justice Baer
      joins Parts I, II(A), and II(B) of the opinion. Justices Donohue and Wecht
      join Parts I, II(A), and III of the opinion.

                                        OPINION


JUSTICE TODD                                      DECIDED: NOVEMBER 27, 2017
      We granted review in this matter to consider whether Appellant, Victoria

Livingstone, who was in a stopped vehicle on the side of the road, was subjected to an

investigatory detention without reasonable suspicion of criminal activity1 when a police

1
  This Court has recognized three categories of interaction between citizens and the
police. The first is a mere encounter, or request for information, which need not be
supported by any level of suspicion. Commonwealth v. Strickler, 757 A.2d 884, 889
(Pa. 2000). The second category of interaction, an investigative detention or Terry stop,
see Terry v. Ohio, 392 U.S. 1 (1968), “subjects an individual to a stop and period of
detention but is not so coercive as to constitute the functional equivalent of an arrest.”
Strickler, 757 A.2d at 889. To survive constitutional scrutiny, “an investigative detention
must be supported by a reasonable and articulable suspicion that the person seized is
(continued…)
officer, ostensibly seeking only to inquire about her need for assistance, pulled his patrol

car, with its emergency lights activated, alongside her vehicle. For the reasons set forth

below, we conclude that Appellant was subjected to an illegal investigatory detention.

Furthermore, although we take this opportunity to recognize the public servant

“exception” to the warrant requirement under the community caretaking doctrine, which

in certain circumstances will permit a warrantless seizure, we conclude that the doctrine

does not justify the detention of Appellant under the facts of this case. Thus, we hold

that the Superior Court erred in affirming the trial court's denial of Appellant’s motion to

suppress evidence obtained as a result of her illegal investigatory detention, and we

reverse the Superior Court's decision and remand for further proceedings.

                                     I. Background

       On June 14, 2013, at approximately 9:30 p.m., Pennsylvania State Trooper

Jeremy Frantz was traveling northbound on Interstate 79 in his marked police cruiser

when he observed a vehicle pulled over onto the right shoulder of the road; the engine

was running, but the hazard lights were not activated. Trooper Frantz activated his

emergency lights and, with his passenger window down, pulled alongside the stopped

vehicle. Appellant, the sole occupant of the vehicle, was sitting in the driver’s seat and

appeared to be entering an address into her vehicle’s navigation system. According to

Trooper Frantz’s testimony at the suppression hearing, when he first made eye contact

with Appellant, she gave him a “hundred mile stare,” which Trooper Frantz described as

“glossy eyes” and “looking through [him].” N.T. Suppression Hearing, 5/28/14, at 7.

Trooper Frantz motioned for Appellant to roll down her window, and he asked her if she

(…continued)
engaged in criminal activity and may continue only so long as is necessary to confirm or
dispel such suspicion.” Id. Finally, an arrest or custodial detention must be supported
by probable cause to believe the person is engaged in criminal activity. Id.



                                     [J-112-2016] - 2
was okay.       Appellant answered affirmatively.     When asked where she was going,

Appellant stated that she was traveling to New York for a dragon boat race. At that

point, Trooper Frantz pulled his cruiser in front of Appellant’s vehicle, exited the cruiser,

and approached Appellant’s vehicle on foot. At approximately the same time, another

trooper pulled behind Appellant’s vehicle, but, when he exited his vehicle, that trooper

remained in front of his police cruiser and did not make contact with Appellant. Id. at

12.

         When he reached Appellant’s vehicle on foot, Trooper Frantz asked to see

Appellant’s driver’s license, and, when asked if she had been drinking, Appellant replied

that she had not, but that she would like to once she arrived at her destination. She

explained that she had finished working at 8:00 p.m., and had been driving for

approximately 90 minutes. The audio of Trooper Frantz’s dashboard camera video,

which was introduced at the suppression hearing, reveals that Appellant repeatedly told

Trooper Frantz that she was “a CEO of five companies” and worked long hours. Id. at

10. She also repeatedly stated that she had two sons at the Citadel,2 and she told

Trooper Frantz that she was afraid of him, and afraid that her sons would get in trouble

because of her being stopped. Id. at 11. Based on the appearance of her eyes and the

fact that she was acting “confused,” Trooper Frantz asked Appellant to exit her vehicle

so that he could perform field sobriety tests. Id. He indicated that, at that point, “[s]he

was an emotional wreck. She was crying, constantly repeating herself about the fact

that she’s a CEO of five companies.” Id. at 13. Trooper Frantz then advised Appellant

that he intended to administer a portable breathalyzer test (“PBT”), and, assuming it

was clear, he would help her get to her destination. As neither of the troopers had a


2
    The Citadel is a military college in South Carolina.



                                        [J-112-2016] - 3
PBT in their cruisers, another officer brought one to the scene. The results of the PBT

indicated the presence of alcohol in Appellant’s system. As a result, Trooper Frantz

placed Appellant under arrest, and transported her to the police barracks where an EMT

administered a blood test. The test revealed that Appellant had a blood alcohol content

(BAC) of .205%. Accordingly, Appellant was charged with DUI - General Impairment,3

DUI - Highest Rate of Alcohol,4 and Careless Driving.5

         On March 17, 2014, Appellant filed a pre-trial motion to suppress evidence of her

BAC on the basis that, once Trooper Frantz activated his emergency lights and pulled

alongside her vehicle, she was subjected to an investigative detention unsupported by

reasonable suspicion.       Following an evidentiary hearing, the Honorable Ernest J.

DiSantis, Jr. denied the motion on June 18, 2014, concluding that Trooper Frantz, after

observing Appellant’s vehicle on the side of the interstate, had a duty to determine

whether Appellant was in need of assistance, and his “act of approaching [Appellant’s]

vehicle with his overhead emergency lights was a mere encounter.”             Trial Court

Opinion, 6/18/14, at 4-5. The trial court further determined that, once he observed the

Appellant’s confused demeanor and “glossy” eyes, “it was reasonable for him to

continue his inquiry.” Id. at 5. On October 20, 2014, at a stipulated non-jury trial, at

which the trial court took judicial notice of the facts presented at the suppression

hearing, Appellant was convicted of all charges, and sentenced to an aggregate term of

24 months intermediate punishment, with the first 90 days to be served on electronic

monitoring, followed by probation, and fines and costs.



3
    75 Pa.C.S. § 3802(a)(1).
4
    75 Pa.C.S. § 3802(c).
5
    75 Pa.C.S. § 3714(a).



                                      [J-112-2016] - 4
      Appellant appealed her judgment of sentence to the Superior Court, wherein she

argued that Trooper Frantz’s act of pulling alongside her vehicle with his emergency

lights activated, when her vehicle was stopped on the side of the road, but the hazard

lights were not activated and there were no visible signs of distress to the driver or

vehicle, and when Trooper Frantz had not observed any vehicle violations or received

any report of a vehicle in need of assistance, was an investigative detention and that the

trial court erred in deeming it a mere encounter.         The Superior Court affirmed

Appellant's judgment of sentence in a unanimous, unpublished memorandum opinion.

Commonwealth v. Livingstone, 1829 WDA 2014 (Pa. Super. filed Dec. 21, 2015).

      The Superior Court began its analysis by setting forth the following standard for

determining whether the initial interaction between Appellant and Trooper Frantz

constituted a mere encounter or an investigative detention:

             To determine whether a mere encounter rises to the level of
             an investigatory detention, we must discern whether, as a
             matter of law, the police conducted a seizure of the person
             involved. To decide whether a seizure has occurred, a court
             must consider all the circumstances surrounding the
             encounter to determine whether the demeanor and conduct
             of the police would have communicated to a reasonable
             person that he or she was not free to decline the officer’s
             request or otherwise terminate the encounter. Thus, the
             focal point of our inquiry must be whether, considering the
             circumstances surrounding the incident, a reasonable
             person innocent of any crime, would have thought he was
             being restrained had he been in the defendant’s shoes.

Id. at 3-4 (quoting Commonwealth v. Collins, 950 A.2d 1041, 1046-47 (Pa. Super.

2008)).

      The Superior Court then rejected Appellant’s claim that the activation of

emergency lights on a police cruiser immediately renders an interaction between an

officer and a citizen an investigative detention, noting that it rejected that same




                                    [J-112-2016] - 5
argument in Commonwealth v. Johonoson, 844 A.2d 556 (Pa. Super. 2004),

Commonwealth v. Conte, 931 A.2d 690 (Pa. Super. 2007), and Commonwealth v.

Kendall, 976 A.2d 503 (Pa. Super. 2009). In Johonoson, a state trooper was traveling

on a rural road in the early morning when he observed a slow-moving vehicle with its

flashers activated.   Without using his turn signal, the driver, Johonoson, pulled his

vehicle to the side of the road.    The trooper pulled his cruiser behind the vehicle,

activated his emergency lights, exited his cruiser, and approached the vehicle, where he

noticed severe damage to both sides of the car.          When he began to speak with

Johonoson, the trooper immediately observed signs of intoxication.             Johonoson

subsequently was arrested for DUI.        In a pretrial motion to suppress, Johonoson

alleged, inter alia, that when the trooper pulled behind his vehicle and activated the

patrol car’s emergency lights, he was subjected to an investigatory detention without

reasonable suspicion. The trial court denied the motion, and the Superior Court, in an

alternative holding, affirmed.    The court found that the fact that Johonoson had

voluntarily pulled off the road and came to a full stop without any prompting from the

trooper was critical to its determination. With respect to Johonoson’s argument that the

activated emergency lights were a signal that he was not free to leave, 6 thus rendering

the interaction an investigative detention, the Superior Court stated:

6
   In Johonoson, the court opined that the “free to leave” test, discussed infra, was
inapposite, and that the relevant inquiry was “whether a reasonable person would feel
free to ‘decline the officer’s requests or otherwise terminate the encounter’ once the
officer approaches the driver and begins asking questions.” 844 A.2d at 563 (citing
Commonwealth v. Smith, 836 A.2d 5 (Pa. 2003)). Similarly, in Conte, the court
determined that a reasonable person in the appellant’s position “would have felt free to
decline the officer’s offer of help or to otherwise terminate the encounter,” 931 A.2d at
694, but stated that the “same result would have attained under the ‘free to leave’ test
. . . if appellant had introduced evidence . . . that an alternate ride awaited him” at the
time the officer’s patrol car arrived. Id. at n.3. However, our decision in Smith, wherein
the defendant was approached by police officers while she was on a bus, simply
recognized that, pursuant to Florida v. Bostick, 501 U.S. 429 (1991), the proper inquiry
(continued…)

                                     [J-112-2016] - 6
                     We recognize that flashing overhead lights, when
             used to pull a vehicle over, are a strong signal that a police
             officer is stopping a vehicle and that the driver is not free to
             terminate this encounter. The same is not necessarily true
             under the factual circumstances presented here. It is one
             traditional function of State Troopers, and indeed all police
             officers patrolling our highways, to help motorists who are
             stranded or who may otherwise need assistance. Such
             assistance is to be expected, and is generally considered
             welcome.

                    Often, and particularly at night, there is simply no way
             to render this aid safely without first activating the police
             cruiser's overhead lights. This act serves several functions,
             including avoiding a collision on the highway, and potentially
             calling additional aid to the scene. Moreover, by activating
             the overhead lights, the officer signals to the motorist that it
             is actually a police officer (rather than a potentially
             dangerous stranger) who is approaching.

                     By pulling over to the side of the road at 3:00 in the
             morning on a rural road, after driving slowly with his hazard
             lights on, Appellant should have had reason to expect that a
             police officer would pull over and attempt to render aid.
             Indeed, by his own repeated admissions, Appellant had
             recently been in a serious accident and was lost on a dark
             country road. Appellant is exactly the sort of person whom
             [the trooper] has a duty to assist. The fact that [the trooper]
             activated his lights in the course of doing so does not turn
             the interaction into an investigative detention. Rather, it
             remained a mere encounter for which no suspicion of illegal
             activity was required.
844 A.2d at 562 (emphasis omitted).




(…continued)
where an individual is approached in the confines of a bus is not whether a reasonable
person would feel free to leave, as that belief might be the result of the individual’s
decision to board the bus for travel, rather than coercive conduct on the part of police,
but rather whether, taking into account all of the circumstances surrounding the
encounter, a reasonable person would have felt free to decline to answer an officer’s
questions.



                                    [J-112-2016] - 7
       In Conte, a police officer received a report of a disabled vehicle on the side of the

road, and, upon seeing the vehicle, pulled behind it and activated his emergency lights.

The officer then approached the driver, Conte, who had exited his vehicle, to ask if he

needed help, and Conte indicated he had a flat tire.          The officer noticed signs of

intoxication, and Conte ultimately was arrested and charged with DUI. Conte filed a

motion to suppress on the basis that the uniformed officer’s arrival in his patrol car, with

emergency lights flashing, instantly subjected him to an investigative detention

unsupported by reasonable suspicion.         The trial court denied the motion, and the

Superior Court affirmed, quoting at length from Johonoson. The court determined that

Conte was not subjected to an investigatory detention because “a reasonable person in

[his] position would have understood [the officer’s] arrival as an act of official assistance,

and not as the start of an investigative detention.” 931 A.2d at 693. The court further

concluded that a reasonable person in Conte’s position, “knowing the officer was simply

carrying out a highly desirable public safety duty, would have felt free to decline the

officer’s offer of help or to otherwise terminate the encounter.” Id. at 694.

       Finally, in Kendall, two police officers were on routine patrol at approximately

1:15 a.m. when they came upon a vehicle traveling in front of them. After nearly two or

three minutes, the driver, Kendall, activated his turn signal and pulled onto the shoulder

of the two-lane road, leaving his turn signal on. The officers pulled behind the vehicle,

and, after running the license plate, activated their emergency lights. One of the officers

exited the patrol car and approached the driver’s side of the vehicle, asking Kendall why

he had pulled over suddenly. Kendall stated that he did so to let the patrol car pass. At

this time, the officer observed an open can of beer on the passenger seat and smelled

alcohol on the driver’s breath, and Kendall was arrested and charged with DUI. He filed

a pretrial motion to suppress the evidence on the grounds that he was subjected to an




                                      [J-112-2016] - 8
investigatory detention without reasonable suspicion, which the trial court denied. On

appeal, the Superior Court affirmed the trial court’s denial of the motion to suppress,

concluding that, in light of police officers’ duty to render aid and assistance to motorists,

the interaction between the officers and Kendall was a mere encounter, which required

no level of suspicion.     Citing Conte and Johonoson, the court reiterated that the

activation of emergency lights does not transform a mere encounter into an

investigatory detention. 975 A.2d at 505.

       In the instant case, quoting at length from Johonoson, the Superior Court

concluded that the record supported the trial court’s conclusion that Trooper Frantz

pulled his vehicle alongside Appellant’s vehicle to see if she needed assistance.       The

court suggested that the “absence of outward signs of a vehicle being in distress does

not bar an officer from conducting a safety check,” and opined that, because “[d]rivers

do not commonly stop their cars on an interstate at night, and doing so is generally

associated with a motorist having some sort of problem,” the circumstances were

sufficient to suggest to Trooper Frantz that assistance might be needed. 1829 WDA

2014 at 8 (citing Collins, 950 A.2d at 1047).7 Thus, the court determined that the


7
  In this regard, the Superior Court distinguished its decisions in Commonwealth v. Hill,
874 A.2d 1214 (Pa. Super. 2005), and Commonwealth v. Fuller, 940 A.2d 476 (Pa.
Super. 2007). In Hill, a police officer was patrolling a rural road in the early morning
when he observed a vehicle pull to the side of the road. The officer pulled his police
cruiser behind the vehicle, activated his emergency lights, and approached the vehicle
on foot, at which point he discovered that the driver, Hill, was intoxicated. The Superior
Court held that Hill had been subjected to an investigative detention without reasonable
suspicion because, unlike in Johonoson, there were no circumstances that would lead a
reasonable person to believe that the officer had pulled behind Hill with his emergency
lights activated in order to render assistance.
        Similarly, in Fuller, police officers were traveling in their police cruiser shortly
after midnight when they caught up to a truck traveling in the same direction. The
driver, Fuller, slowed down to an approximate stop, and then pulled onto the berm of the
road. The officers pulled their police vehicle behind the truck and activated their
emergency lights. One of the officers approached Fuller on foot, and noticed signs of
(continued…)

                                      [J-112-2016] - 9
interaction between Appellant and Trooper Frantz constituted a mere encounter and

thus did not require reasonable suspicion of criminal activity. Livingstone, at 6.

       Appellant filed a petition for allowance of appeal with this Court, and we granted

review to consider the following issue: “Where a Police Officer approaches a voluntarily

stopped motorist with [the police vehicle’s] emergency lights activated, would a

reasonable motorist feel that she was not free to leave prior to the approaching officer

stopping to interact with her, or, simply passing her by?” Commonwealth v. Livingstone,

135 A.3d 1016 (Pa. 2016) (order). We specifically directed the parties to address the

potential application of a community caretaking exception, see, e.g., State v. Anderson,

362 P.3d 1232 (Utah 2015) (holding that seizure of defendant who had stopped his car

on the side of a rural highway at night and activated his vehicle’s hazard lights was

justified under the public servant exception to the community caretaking doctrine), under

these circumstances.

                                       II. Analysis

       As Appellant challenges the Superior Court’s decision affirming the trial court’s

denial of her motion to suppress, we first note our well established standard of review of

claims regarding the denial of a suppression motion:


(…continued)
intoxication. When asked why he had pulled off the road, Fuller replied “because you
guys were behind me.” 940 A.2d at 477. The Superior Court vacated Fuller’s sentence,
holding that he had been subjected to an investigative detention without reasonable
suspicion; the court noted that the officer who stopped Fuller testified that the officer
believed the activation of the emergency lights was a signal to the motorist that he was
not free to leave and that the officer agreed that Fuller would interpret the lights in the
same manner.
         In the instant case, the Superior Court noted that, in Fuller and Hill, the officers
initially witnessed the motorists driving on the road and did not observe anything that
would suggest that the motorists needed assistance, whereas in the instant case,
Appellant’s vehicle was “parked” on an interstate at night, which is “unusual.”
Livingstone, 1829 WDA 2014 at 7.



                                     [J-112-2016] - 10
             We may consider only the Commonwealth’s evidence 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 factual findings of the
             trial court, we are bound by those facts and may reverse
             only if the legal conclusions drawn therefrom are in error. An
             appellate court, of course, is not bound by the suppression
             court’s conclusions of law.
Commonwealth v. Gary, 91 A.3d 102, 106 (Pa. 2014) (citation omitted).         In reviewing

questions of law, our standard of review is de novo and our scope of review is plenary.

Weaver v. Lancaster Newspapers, Inc., 926 A.2d 899, 903 (Pa. 2007).

                            A. Seizure vs. Mere Encounter

      In arguing that the Superior Court erred in affirming the trial court's denial of her

motion to suppress, Appellant maintains that, at the moment Trooper Frantz pulled

alongside her stopped vehicle, with his emergency lights activated, she was subjected

to an investigative detention that was not supported by reasonable suspicion or

probable cause, thus violating her right to be free from unreasonable searches and

seizures under the Fourth Amendment to the United States Constitution.8 In its brief,

the Commonwealth asserts that the “initial interaction between Trooper Frantz and

Appellant was a mere encounter,” Commonwealth Brief at 2, but devotes its argument

and analysis to whether Trooper Frantz’s stop of Appellant was justified under the

community caretaking doctrine. For the following reasons, we are constrained to agree

with Appellant that, when Trooper Frantz pulled alongside her vehicle, with his

emergency lights activated, Appellant was subjected to an investigative detention.


8
  Although Appellant also cites Article I, Section 8 of the Pennsylvania Constitution, she
does not contend that the Pennsylvania Constitution provides any greater privacy
protection under the facts of this case than does the Fourth Amendment, nor does she
cite any cases for such a proposition. Thus, we analyze this case purely under the
federal Constitution.




                                    [J-112-2016] - 11
         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.

         The United States Constitution does not forbid all searches and seizures; rather,

it forbids unreasonable searches and seizures. Terry, 392 U.S. at 9. A determination of

whether a search is reasonable requires balancing the public interest in conducting the

search or seizure against an individual’s right to be free from arbitrary intrusions by law

enforcement officers.      Id. at 20-21.    Furthermore, in the context of the Fourth

Amendment, a person is considered 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, 554 (1980). In evaluating those

circumstances, the crucial inquiry is whether the officer, “by means of physical force or a

show of authority,” has restrained a citizen’s freedom of movement. Id. at 553; Strickler,

757 A.2d at 890.

         As a preliminary matter, we emphasize that the issue of whether an individual

has been seized is distinct from the issue of whether that seizure was reasonable. The

fact that a search may be deemed reasonable pursuant to an “exception”9 to the

warrant requirement does not mean that the individual was not subjected to a seizure in

the first instance. For example, in the context of the community caretaking doctrine

exception to the warrant requirement, the Supreme Court of Illinois explained, “if

community caretaking were just another name for consensual encounters, there would

9
    See note 11, infra.



                                     [J-112-2016] - 12
have been no need for courts to formulate the exception in the first place.” People v.

McDonough, 940 N.E.2d 1100, 1107 (Ill. 2010) (“[T]he community caretaking doctrine ‘is

analytically distinct from consensual encounters and is invoked to validate a search or

seizure as reasonable under the [F]ourth [A]mendment. It is not relevant to determining

whether police conduct amounted to a seizure in the first place.” (emphasis original));

see also State v. McCormick, 494 S.W.3d 673, 675 (Tenn. 2016) (“[T]he community

caretaking doctrine is analytically distinct from consensual police-citizen encounters and

is instead an exception to the state and federal constitutional warrant requirements

which may be invoked to validate as reasonable a warrantless seizure of an

automobile.”); State v. Crawford, 659 N.W.2d 537, 543 (Iowa 2003) (“Implicit in any

community caretaking case is the fact that there has been a seizure within the meaning

of the Fourth Amendment. Otherwise there would be no need to apply a community

caretaking exception.”).

      As noted above, the trial court in the instant case concluded that “Trooper Frantz

was under a duty to determine whether [Appellant] needed assistance,” such that

Trooper Frantz’s “act of approaching [Appellant’s] vehicle with his overhead emergency

lights was a mere encounter.” Trial Court Opinion, 6/18/14, at 4-5 (citing Conte, supra

and Kendall, supra). Moreover, in affirming the trial court’s order, the Superior Court

held that the trial court’s determination that Trooper Frantz pulled alongside Appellant’s

vehicle in order to conduct a “safety check” was supported by the record, and, therefore,

that the interaction was a mere encounter. Livingstone, 1829 WDA 2014 at 7, 10. In

focusing on whether Trooper Frantz had a duty to determine whether Appellant was in

need of assistance, and whether it was reasonable for him to conclude that she might,

the lower courts conflated the threshold issue of whether Appellant was seized − i.e.,

whether a reasonable person in Appellant’s shoes would have believed that she was




                                    [J-112-2016] - 13
free to leave − with the issue of whether the seizure was reasonable. 10 Thus, we must

first determine whether Appellant was seized by considering whether a reasonable

person in Appellant’s shoes would have believed she was free to leave when Trooper

Frantz pulled his patrol car, with its emergency lights activated, alongside her vehicle.

       To determine whether a citizen’s movement has been restrained, courts must

consider the totality of the circumstances, “with no single factor dictating the ultimate

conclusion as to whether a seizure has occurred.”         Strickler, 757 A.2d at 890.       In

Mendenhall, the high Court indicated that the following factors suggest a seizure

occurred: “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.”

446 U.S. at 554. The Court explained that, absent evidence of the factors identified



10
    We note that, in the cases relied on by the Superior Court below, including
Johonoson, Conte, and Kendall, the courts’ decisions likewise were based in part on its
belief that the motorists should have expected that a police officer might approach them
and attempt to render aid. In Johonoson, the court opined, “[b]y pulling over to the side
of the road at 3:00 in the morning on a rural road, after driving slowly with his hazard
lights on, Appellant should have had reason to expect that a police officer would pull
over and attempt to render aid.” 844 A.2d at 562. In Conte, the court similarly held
“[t]he evidence introduced at the suppression hearing shows that a reasonable person
in Appellant’s position would have understood [the officer’s] arrival as an act of official
assistance, and not as the start of an investigative detention.” 931 A.2d at 693. In
Kendall, the Superior Court stated:
               While we have held that the applicable standard in
               determining whether an interaction rises to the level of an
               investigative detention hinges on whether “a reasonable
               person believe[s] he was not free to go and was subject to
               the officer’s orders,” this should not be the only standard in
               situations like the one at hand. . . . It has been suggested in
               case law that this determination might turn on whether the
               driver had reason to believe that that officer is simply
               carrying out his duty to render aid.
976 A.2d at 508.



                                    [J-112-2016] - 14
above, “otherwise inoffensive contact between a member of the public and the police

cannot, as a matter of law, amount to a seizure of that person.” Id. at 555.

       Similarly, in Commonwealth v. Jones, this Court explained that, in order to

determine when a “stop” has occurred, “subtle factors as the demeanor of the police

officer, the location of the confrontation, the manner of expression used by the officer in

addressing the citizen, and the content of the interrogatories or statements,” must be

considered. 378 A.2d 835, 839-40 (Pa. 1977) (recognizing that, while a police uniform

is a symbol of authority, a uniform is not, in and of itself, a sufficient exercise of force to

render an interaction between an officer and a citizen a “stop”). The pivotal inquiry is

whether, in light of the facts and circumstances identified above, “a reasonable man,

innocent of any crime, would have thought (he was being restrained) had he been in the

defendant’s shoes.” Id. at 840 (citation omitted). The Jones/Mendenhall standard has

been consistently followed in Pennsylvania in determining whether the conduct of the

police amounts to a seizure, or whether there is simply a mere encounter between

citizen and police officer. Commonwealth v. Matos, 672 A.2d 769, 774 (Pa. 1996).

       It is undeniable that emergency lights on police vehicles in this Commonwealth

serve important safety purposes, including ensuring that the police vehicle is visible to

traffic, and signaling to a stopped motorist that it is a police officer, as opposed to a

potentially dangerous stranger, who is approaching. See Johonoson, 844 A.2d at 562.

Moreover, we do not doubt that a reasonable person may recognize that a police officer

might activate his vehicle’s emergency lights for safety purposes, as opposed to a

command to stop. Nevertheless, upon consideration of the realities of everyday life,

particularly the relationship between ordinary citizens and law enforcement, we simply

cannot pretend that a reasonable person, innocent of any crime, would not interpret the




                                      [J-112-2016] - 15
activation of emergency lights on a police vehicle as a signal that he or she is not free to

leave.

         Indeed, the Pennsylvania Driver’s Manual (“PDM”) instructs drivers how to

proceed “if [they] are stopped by police.” The PDM first provides: “You will know a

police officer wants you to pull over when he or she activates the flashing red and blue

lights on top of the police vehicle.”         Pa. Driver’s Manual at 78, available at

http://www.dot.state.pa.us/Public/DVSPubsForms/BDL/BDLManuals. The PDM further

“recommends” that drivers follow certain procedures “[a]nytime a police vehicle stops

behind you.” Id. Those procedures include turning off the engine and radio, rolling

down a window to enable communication with the officer, limiting their movements and

the movements of passengers; placing their hands on the steering wheel; keeping the

vehicle doors closed and remaining inside the vehicle; and keeping their seatbelt

fastened. Id. If these instructions do not explicitly instruct motorists who are already

stopped on the side of the road that they are not free to leave when a police vehicle,

with its emergency lights activated, pulls alongside their vehicle, we conclude that it is

eminently reasonable that a motorist would believe he or she is not free to leave under

these circumstances.

         Moreover, pursuant to Pennsylvania’s Motor Vehicle Code, a driver of a motor

vehicle “who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees

or attempts to elude a pursuing police officer, when given a visual and audible signal to

bring the vehicle to a stop,” may be convicted of a second-degree misdemeanor. 75

Pa.C.S. § 3733(a), (a.2). A police officer’s signal may be “by hand, voice, emergency

lights or siren.” Id. § 3733(b). Section 3325(a) of the Motor Vehicle Code, titled “Duty of

driver on approach of emergency vehicle,” similarly provides:

               (a) General rule.--Upon the immediate approach of an
               emergency vehicle making use of an audible signal and


                                     [J-112-2016] - 16
               visual signals meeting the requirements and standards set
               forth in regulations adopted by the department, the driver of
               every other vehicle shall yield the right-of-way and shall
               immediately drive to a position parallel to, and as close as
               possible to, the right-hand edge or curb of the roadway clear
               of any intersection and shall stop and remain in that position
               until the emergency vehicle has passed, except when
               otherwise directed by a police officer or an appropriately
               attired person authorized to direct, control or regulate traffic.
Id. § 3325(a) (emphasis added).

         The fact that motorists risk being charged with violations of the Motor Vehicle

Code if they incorrectly assume they are free to leave after a patrol car, with its

emergency lights activated, has pulled behind or alongside of them further supports our

conclusion that a reasonable person in Appellant’s shoes would not have felt free to

leave.

         The appellate courts of many of our sister states have reached the same

conclusion.    For example, in State v. Morris, 72 P.3d 570 (Kan. 2003), an undercover

officer observed Morris sitting in a parked pick-up truck, with the engine running, on a

rocky jetty-breaker area at a lake. The officer had seen Morris earlier in the day while

conducting surveillance of an apartment building as part of an investigation of a possible

methamphetamine lab. Upon seeing Morris in his parked truck, the undercover officer

radioed for two additional officers, who arrived in a marked police vehicle. By the time

the two officers arrived, Morris had turned off the engine, and the officers pulled their

vehicle behind the truck, activated their emergency lights, and illuminated the back of

the truck with spotlights. The three officers approached the truck, requested Morris’

identification, and, upon noticing a chemical odor from the truck, asked Morris to exit the

truck.    A search of the truck revealed materials used in the manufacturer of

methamphetamine.        Morris filed a pretrial motion to suppress the evidence, and,

although he did not raise the precise argument that he was subjected to an unlawful



                                      [J-112-2016] - 17
investigative detention when the officers pulled up behind him and activated their

emergency lights, the Kansas Supreme Court nevertheless addressed the issue:

             The officers’ conduct, the activation of the emergency lights
             in a remote area off a roadway, was a show of authority
             which would communicate to a reasonable person that there
             was an intent to intrude upon freedom of movement. “Few, if
             any, reasonable citizens, while parked, would simply drive
             away and assume that the police, in turning on the
             emergency flashers, would be communicating something
             other than for them to remain.” Lawson v. State, [707 A.2d
             947 (Md. App. 1998)]. In fact, it is unlawful for a driver to fail
             to stop when a police officer signals the driver by using
             emergency lights. K.S.A. 8-1568 (fleeing and eluding).

72 P.3d at 577.


      In State v. Anderson, supra, the Utah Supreme Court suggested that even where

the circumstances would suggest that police assistance was needed or welcomed, a

seizure occurs if a reasonable person in the motorist’s shoes would not feel free to

leave after being approached by a police vehicle with its emergency lights activated.

The defendant, Anderson, had stopped his car on the side of a rural highway on a cold

December evening, and turned on the vehicle’s hazard lights. Two county deputies

noticed the vehicle as they drove down the highway. Due to the late hour, cold weather,

and hazard lights, the deputies pulled their patrol car behind the defendant’s, and

activated their red and blue emergency lights. The deputies approached Anderson on

foot, asked him to exit his car, and ultimately discovered marijuana and drug

paraphernalia in his vehicle. Prior to trial, Anderson sought to suppress evidence of the

drugs and paraphernalia on the basis that he had been subjected to an investigative

detention unsupported by reasonable suspicion when the deputies pulled their police

cruiser with its lights activated behind his parked vehicle; the motion was denied and

Anderson was convicted.



                                    [J-112-2016] - 18
      On appeal, the Utah Supreme Court first examined whether Anderson had been

seized for purposes of the Fourth Amendment, which the Court noted required a

determination as to “whether a reasonable person parked on the side of an empty

highway at night would believe that she was free to leave if a police vehicle with its red

and blue overhead lights engaged pulled over directly behind her car.” 362 P.3d at

1235-36. The high Court acknowledged the State’s argument that “a police vehicle’s

overhead lights are not always used as a show of authority,” and “may be used for

officer or public safety and to convey to the occupants of a vehicle that the approaching

officer does not present a threat.”     Id. at 1236. However, in response to the State’s

contention that, under the circumstances, a reasonable motorist would know that the

police officer was using the overhead lights for safety purposes and not a show of

authority, the high Court explained:

             Even though we may presume that a reasonable person
             knows that police officers may use their overhead lights for
             reasons other than as a command to stop, that does not
             mean that the average motorist [who was parked on the side
             of an empty highway at night when a police vehicle with its
             emergency lights activated pulled directly behind her] would
             assume that the officers had no interest in detaining the
             vehicle and would feel free to drive away. At best, the use of
             a police vehicle's overhead lights while pulling behind a car
             parked on the side of the road is ambiguous. The lights may
             signal the presence of a police vehicle for safety reasons, or
             they may convey the message that the officers wish to seize
             the vehicle parked in front of them. Faced with this
             ambiguity, “[f]ew, if any, reasonable citizens, while parked,
             would simply drive away” upon an assumption that the police
             did not wish to detain them. Morris, 72 P.3d at 577 (citation
             omitted). The consequences of wrongly guessing the
             officer's intent in engaging the overhead lights and driving
             away could, in theory, be severe. Attempting “to flee or elude
             a peace officer” after receiving “a visual or audible signal
             from a peace officer to bring the vehicle to a stop” is a third-
             degree felony. Utah Code § 41–6a–210(1). The potential of
             even being accused of a felony would constrain a
             reasonable motorist from driving away under the facts of this


                                       [J-112-2016] - 19
             case. See Morris, 72 P.3d at 577 (citing Kansas's fleeing-an-
             officer statute as a reason why a reasonable person would
             not feel free to leave); Lawson v. State, 120 Md.App. 610,
             707 A.2d 947, 951 (1998) (citing a Maryland statute for the
             same purpose).
Id.

      Numerous other jurisdictions, including Arkansas, California, Connecticut,

Florida, Idaho, Maryland, Montana, North Dakota, Oregon, Tennessee, Vermont,

Virginia, Washington, and Wyoming, have likewise concluded that a seizure occurs

when a police officer pulls his police vehicle, with its emergency lights activated, behind

a parked or stopped vehicle. See Hammons v. State, 940 S.W.2d 424, 428 (Ark. 1997)

(defendant sitting in parked car was seized when police activated blue light; light was

display of authority that would indicate to reasonable person he was not free to leave);

People v. Brown, 353 P.2d 305, 312 (Cal. 2015) (defendant sitting in parked car was

seized when officer pulled his patrol car behind the defendant’s car and activated his

overhead emergency lights because a reasonable person in defendant’s position would

have perceived the actions as a show of authority requiring that he submit by remaining

where he was); State v. Donahue, 742 A.2d 775, 780 (Conn. 1999) (defendant was

seized when officer pulled behind his parked vehicle and activated the patrol car’s red,

yellow, and blue flashing lights); Smith v. State, 87 So.3d 84, 88 (Fla. Dist. Ct. App. 4th

2012) (defendant sitting in vehicle that was legally parked on the side of a residential

street was seized when a police officer pulled diagonally to defendant’s vehicle and

activated his emergency lights and spotlight because defendant would not have felt free

to leave); State v. Mireles, 991 P.2d 878, 880 (Idaho Ct. App. 1999) (officer’s act of

activating emergency lights, although not necessarily intended to create a detention,

constituted a technical, de facto detention commanding the defendant to remain

stopped under state statute, such that he would not have believed he was free to leave);

Lawson v. Maryland, 707 A.2d 947, 951 (Md. App. 1998) (defendant in parked car was


                                    [J-112-2016] - 20
seized when police activated emergency lights because activation of the emergency

lights was a show of authority that would communicate to a reasonable person that he

was not free to move away); State v. Graham, 175 P.3d 885, 889 (Mont. 2007)

(defendant who was sitting in his parked truck on a dirt pullout was seized when deputy

pulled her patrol car behind the truck and activated her emergency lights because a

reasonable person would not have felt free to leave); State v. Thompson, 793 N.W.2d

185, 187 (N.D. 2011) (defendant who pulled into a parking spot was seized when police

officer stopped directly behind the defendant’s vehicle and activated his patrol car’s

emergency lights because a reasonable person would not believe he was free to leave

under such circumstances); State v. Walp, 672 P.2d 374, 375 (Or. App. 1983) (use of

emergency lights after defendant had stopped car on his own accord was sufficient

show of authority and a reasonable person would not have felt free to leave); State v.

Pulley, 863 S.W.2d 29, 30 (Tenn. 1993) (defendant sitting in parked car at gas station

was seized when police officer pulled his patrol car behind him and activated his blue

lights); State v. Burgess, 657 A.2d 202, 203 (Vt. 1995) (defendant sitting in vehicle with

engine running and parking lights on in lawful pull-off area was subjected to seizure

when officer pulled his patrol car behind the defendant’s vehicle and activated his blue

lights, even if officer subjectively intended to activate his blue lights for safety reasons);

Wallace v. Commonwealth, 528 S.E.2d 739, 741-42 (Va. App. 2000) (driver of vehicle

parked in driveway was seized when police officer parked his patrol car behind him and

activated its emergency lights because a reasonable person would not have felt free to

leave); State v. Stroud, 634 P.2d 316, 318 (Wash. App. 1981) (occupants of parked

vehicle were seized when officers pulled up behind them and activated patrol car’s

emergency lights and headlights because such action constituted a show of authority

sufficient to convey to any reasonable person that he or she was not free to leave, and




                                     [J-112-2016] - 21
risked being charged with misdemeanor if he or she tried to do so); McChesney v.

State, 988 P.2d 1071, 1075 (Wyo. 1999) (where police vehicle with its emergency lights

activated pulled behind a vehicle that had turned into a parking lot, defendant was

seized for purposes of Fourth Amendment because a reasonable person would not

have believed he was free to leave, particularly where state statute prohibited a driver

from attempting to elude a police vehicle after being given a “visual or audible signal to

bring the vehicle to a stop”).

       As we conclude that a reasonable person in Appellant’s shoes would not have

felt free to leave after Trooper Frantz pulled his patrol car, with its emergency lights

activated, alongside her vehicle, we are constrained to hold that Appellant was seized

and subjected to an investigative detention. Given that it is undisputed that the seizure

was not supported by any degree of suspicion of criminal activity, we will proceed to

determine whether it was otherwise justified under the Fourth Amendment.

                        B. The Community Caretaking Doctrine

       In order to protect individuals against unreasonable searches and seizures, a

right guaranteed by the Fourth Amendment, law enforcement generally must obtain a

warrant prior to conducting a search: “A search warrant indicates that the police have

convinced a neutral magistrate upon a showing of probable cause, which is a

reasonable belief, based on the surrounding facts and totality of circumstances, that an

illegal activity is occurring or evidence of a crime is present.” Commonwealth v. Petroll,

738 A.2d 993, 998 (Pa. 1999). Further, “a search without a warrant may be proper

where an exception applies and the police have probable cause to believe a crime has

been or is being committed.” Id. at 999 (citing, inter alia, Commonwealth v. Riedel, 651

A.2d 135, 139 & n.1 (Pa. 1994) (noting that exceptions include actual consent, implied

consent, search incident to arrest, and exigent circumstances)).        Moreover, some




                                    [J-112-2016] - 22
warrantless searches have been held not to violate state or federal constitutional

privacy rights, even absent probable cause, for officer safety or administrative reasons.

See Petroll, 738 A.2d at 999 (citing Commonwealth v. Morris, 644 A.2d 721 (Pa. 1994)

(protective search); Colorado v. Bertine, 479 U.S. 367, 371–72 (1987) (inventory

search); New York v. Burger, 482 U.S. 691, 702-03 (1987) (administrative search of a

closely regulated business)).

       The Commonwealth maintains that, even if Appellant was subjected to a seizure,

that seizure was reasonable under the community caretaking “exception” to the Fourth

Amendment’s warrant requirement.11 Appellant, conversely, argues that application of

the doctrine is not supported under the facts of this case. The United States Supreme

Court first recognized a community caretaking exception to the warrant requirement in

Cady v. Dombrowski, 413 U.S. 433 (1973). Therein, the Court considered whether

police officers violated a vehicle owner’s Fourth Amendment rights when, without

obtaining a warrant, they searched the trunk of a parked vehicle because they

reasonably believed that the trunk contained a loaded service revolver that could

endanger the public if left unsecured. The vehicle owner had been arrested one day

earlier for drunk driving and identified himself as a police officer. In determining that the

search of the trunk was reasonable, the Court observed that police officers “frequently

11
    In referring to circumstances in which a warrantless search will be deemed
reasonable absent probable cause, courts often use the phrase “exception to the
warrant requirement,” see, e.g., Bertine, 479 U.S. at 371 (“inventory searches are now a
well-defined exception to the warrant requirement of the Fourth Amendment”). In our
view, this is somewhat of a misnomer, as use of the phrase “exception to the warrant
requirement” suggests that a warrant generally would be required; yet, as we discuss
below, a search conducted under the community caretaking doctrine, when viewed
objectively, must be independent from the investigation of criminal activity, and thus, in
such circumstances, there would be no basis upon which to obtain a warrant in the first
instance. Nevertheless, as most courts characterize the community caretaking doctrine
as an “exception” to the warrant requirement, we will occasionally employ that language
as well.



                                     [J-112-2016] - 23
investigate vehicle accidents in which there is no claim of criminal liability and engage in

what, for want of a better term, may be described as community caretaking functions,

totally divorced from the detection, investigation, or acquisition of evidence relating to

the violation of a criminal statute.” Id. at 441. The high Court further opined that, “[t]he

fact that the protection of the public might, in the abstract, have been accomplished by

‘less intrusive’ means does not, by itself, render the search unreasonable.” Id. at 447.

        The community caretaking doctrine has been characterized as encompassing

three    specific   exceptions:   the   emergency     aid   exception;    the   automobile

impoundment/inventory exception; and the public servant exception, also sometimes

referred to as the public safety exception. See State v. Ryon, 108 P.3d 1032, 1042

(N.M. 2005) (community caretaker exception encompasses three distinct doctrines: the

emergency aid doctrine, the automobile impoundment and inventory doctrine, and the

public servant doctrine); State v. Acrey, 64 P.3d 594, 600 (Wash. 2003) (en banc)

(community caretaking function exception to the warrant requirement encompasses not

only search and seizure of automobiles, but also situations involving either emergency

aid or routine checks on health and safety); State v. Kurth, 813 N.W. 2d 270, 277 (Iowa

2012) (community caretaking activity consists of three subcategories: the emergency

aid exception, the automobile impoundment/inventory exception, and the public servant

exception noted in Cady, supra).

        Each of the exceptions contemplates that the police officer’s actions be

motivated by a desire to render aid or assistance, rather than the investigation of

criminal activity. See Ryon, 108 P.3d at 1043 (“The common characteristic of [the three

exceptions of the community caretaking doctrine] is that the intrusion upon privacy

occurs while police are acting as community caretakers; their actions are motivated by

‘a desire to aid victims rather than investigate criminals.’”); Corbin v State, 85 S.W.3d




                                     [J-112-2016] - 24
272, 277 (Tex. Crim App. 2002) (“[A] police officer may not properly invoke his

community caretaking function if he is primarily motivated by a non-community

caretaking purpose.”); Commonwealth v. Waters, 456 S.E.2d 527, 530 (Va. Ct. App.

1995) (“[n]o seizure, however limited, is a valid exercise of the community caretaking

function if credible evidence indicates that the stop is a pretext for investigating criminal

activity.”).

        In Commonwealth v. Laganella, 83 A.3d 94, 103 (Pa. 2013), this Court

acknowledged the “community care-taking functions” of police when we considered the

legality of an inventory search of a vehicle lawfully impounded pursuant to standard

police policy. We have not, however, addressed the public servant or the emergency

aid exceptions under the community caretaking doctrine, although more than half of our

sister states have done so.12     See People v. Ray, 981 P.2d 929, 931 (Cal. 1999)

12
    In Commonwealth v. Davido, 106 A.3d 611 (Pa. 2014), we determined that police
officers’ warrantless entry into a home where a domestic disturbance had been reported
was justified pursuant to “exigent circumstances” because the police received no
response when they knocked and reasonably inferred that someone inside was in need
of emergency assistance. However, the exigent circumstances exception is distinct
from the emergency aid exception that falls under the community caretaking doctrine.
As the California Supreme Court aptly explained:
            [T]he emergency aid doctrine is not a subcategory of the
            exigent circumstances exception to the warrant requirement.
            Rather, it is a subcategory of the community caretaking
            exception, a distinctly different principle of Fourth
            Amendment jurisprudence. “When the police act pursuant to
            the exigent circumstances exception, they are searching for
            evidence or perpetrators of a crime. Accordingly, in addition
            to showing the existence of an emergency leaving no time
            for a warrant, they must also possess probable cause that
            the premises to be searched contains such evidence or
            suspects. In contrast, the community caretaker exception is
            only invoked when the police are not engaged in crime-
            solving activities.” With respect to Fourth Amendment
            guaranties, this is the key distinction: “the defining
            characteristic of community caretaking functions is that they
(continued…)

                                     [J-112-2016] - 25
(warrantless entry into home justified under emergency aid exception); Williams v.

State, 962 A.2d 210, 216 (Del. 2008) (approach and questioning of defendant walking

on highway median was not a seizure, and, even if it was, seizure was justified under

public safety exception); Hawkins v. United States, 113 A.3d 216, 221–22 (D.C. 2015)

(warrantless entry into idling car justified under public safety exception); State v.

Maddox, 54 P.3d 464, 467 (Idaho 2002) (detention of motorist driving off-road not

justified under public safety doctrine); People v. McDonough, 940 N.E.2d 1100, 1109

(Ill. 2010) (police officers’ approach of vehicle stopped on shoulder of highway at night

justified under public safety exception); Kurth, 813 N.W.2d at 278 (Iowa court holding

detention not justified under public servant exception); State v. Neighbors, 328 P.3d

1081, 1089-90 (Kan. 2014) (initial warrantless entry into apartment justified under

emergency aid exception); Poe v. Commonwealth, 169 S.W.3d 54, 58 (Ky. Ct. App.

2005) (rejecting application of public safety exception under facts of the case); State v.

Pinkham, 565 A.2d 318, 320 (Me. 1989) (warrantless entry may be justified by “safety

reasons”); Wilson v. State, 975 A.2d 877, 891 (Md. 2009) (seizure not justified under

public servant exception); Commonwealth v. Fisher, 13 N.E.3d 629, 632–34 (Mass.

App. Ct. 2014) (warrantless seizure of individual in vehicle justified under public servant

exception); People v. Slaughter, 803 N.W.2d 171, 180 (Mich. 2011) (community

caretaking doctrine applies to firefighters); Trejo v. State, 76 So.3d 684, 689 (Miss.

(…continued)
            are totally unrelated to the criminal investigation duties of the
            police.”
Ray, 981 P.2d at 933 (internal citations omitted). Nevertheless, we acknowledge that
we have, on occasion, conflated the two concepts. See Commonwealth v. Miller, 724
A.2d 895, 900 (Pa. 1999) (holding that trial court’s finding of “exigent circumstances”
was supported by the record and justified warrantless entry into house, despite trial
court’s finding that police “were not investigating a crime, but rather, were responding to
requests from concerned family members”).



                                    [J-112-2016] - 26
2011) (under facts of case, vehicle stop not justified under public servant exception);

State v. Graham, 175 P.3d at 890 (Montana) (seizure not justified under public safety

exception); State v. Bakewell, 730 N.W.2d 335, 338 (Neb. 2007) (vehicle stop justified

under public servant exception); State v. Rincon, 147 P.3d 233, 237 (Nev. 2006)

(recognizing community caretaking exception); State v. Boutin, 13 A.3d 334, 337–38

(N.H. 2010) (under facts of case, seizure not justified under public servant exception);

State v. Vargas, 63 A.3d 175, 177 (N.J. 2013) (warrantless entry into defendant’s

apartment not justified by emergency aid exception); Ryon, 108 P.3d at 1041 (New

Mexico) (holding warrantless entry into defendant’s home not justified under emergency

aid exception); State v. Smathers, 753 S.E.2d 380, 382 (N.C. Ct. App. 2014) (formally

recognizing community caretaking doctrine); State v. Dunn, 964 N.E.2d 1037, 1042

(Ohio 2012) (seizure of individual justified under emergency aid exception); State v.

Kleven, 887 N.W.2d 740, 743 (S.D. 2016) (seizure justified under public servant

exception); State v. McCormick, 494 S.W.3d 673, 686 (Tenn. 2016) (seizure justified

under public servant exception); Hernandez v. State, 376 S.W.3d 863, 877 (Tex. Ct.

App. 2012) (seizure not justified under public servant exception); Anderson, 362 P.3d at

1240 (Utah) (holding seizure justified under public servant exception); State v. Hinton,

112 A.3d 770, 773 (Vt. 2014) (seizure justified under public servant exception); Knight v.

Commonwealth, 734 S.E.2d 716, 721 (Va. Ct. App. 2012) (community caretaking

doctrine did not justify police officer’s search of defendant’s backpack); Acrey, 64 P.3d

at 603 (Washington) (holding detention of juvenile justified under community caretaking

doctrine); Ullom v. Miller, 705 S.E.2d 111, 121 (W. Va. 2010) (seizure justified under

public safety exception); State v. Kramer, 759 N.W.2d 598, 605 (Wis. 2009) (seizure

justified under public servant exception); Morris v. State, 908 P.2d 931, 935 (Wyo.

2005) (search of defendant’s wallet not justified under public servant exception).




                                    [J-112-2016] - 27
       The Supreme Court of Delaware described the basis for the community

caretaking doctrine as follows:

              The modern police officer is a “jack-of-all-emergencies,” with
              “‘complex and multiple tasks to perform in addition to
              identifying and apprehending persons committing serious
              criminal offenses’; by default or design he is also expected
              ‘to aid individuals who are in danger of physical harm,’
              ‘assist those who cannot care for themselves,’ and ‘provide
              other services on an emergency basis.’”           To require
              reasonable suspicion of criminal activity before police can
              investigate and render assistance in these situations would
              severely hamstring their ability to protect and serve the
              public.

Williams, 962 A.2d at 216-17 (internal citations and footnote omitted).

       Similarly, the Tennessee Supreme Court observed that the “widespread adoption

of the community caretaking doctrine as an exception to the warrant requirement

reflects the reality that modern society expects police officers to fulfill various

responsibilities,” noting:

              Police officers wear many hats: criminal investigator, first aid
              provider, social worker, crisis intervener, family counselor,
              youth mentor and peacemaker, to name a few. They are
              charged with the duty to protect people, not just from
              criminals, but also from accidents, natural perils and even
              self-inflicted injuries. We ask them to protect our property
              from all types of losses—even those occasioned by our own
              negligence. They counsel our youth. They quell disputes
              between husband and wife, parent and child, landlord and
              tenant, merchant and patron and quarreling neighbors.
              Although they search for clues to solve crime, they also
              search for missing children, parents, dementia patients, and
              occasionally even an escaped zoo animal. They are
              society's problem solvers when no other solution is apparent
              or available.

McCormick, 494 S.W.3d at 683 (citation omitted).




                                    [J-112-2016] - 28
       This Court likewise recognizes that the role of police is not limited to the

detection, investigation, and prevention of criminal activity.     Rather, police officers

engage in a myriad of activities that ensure the safety and welfare of our

Commonwealth’s citizens.      Indeed, we want to encourage such laudable activity.

However, even community caretaking activity must be performed in accordance with

Fourth Amendment protections. Ultimately, we agree that the public servant exception

may be employed consistent with these protections.

       In recognition of the overarching requirements of the Fourth Amendment, courts

have adopted a variety of tests for determining whether the public servant exception

justifies a warrantless search or seizure. In Anderson, supra, the Utah Supreme Court

opined that the same balancing test used in determining whether a seizure is

reasonable under the Fourth Amendment − balancing an individual’s interest in being

free from police intrusion and the State’s legitimate interest in the public welfare − is

applicable to determining whether a seizure is justified pursuant to the community

caretaking doctrine, and instructed:

              In applying this balancing test in the context of a community
              caretaking stop, courts must first evaluate the degree to
              which an officer intrudes upon a citizen’s freedom of
              movement and privacy. In doing so, courts should look to
              both “the degree of overt authority and force displayed” in
              effecting the seizure, and the length of the seizure. Second,
              courts must determine whether “the degree of the public
              interest and the exigency of the situation” justified the
              seizure for community caretaking purposes. In other words,
              how serious was the perceived emergency and what was the
              likelihood that the motorist may need aid? If the level of the
              State’s interest in investigating whether a motorist needs aid
              justifies the degree to which an officer interferes with the
              motorist’s freedoms in order to perform this investigation, the
              seizure is not “unreasonable” under the Fourth Amendment.
362 P.3d at 1239 (internal citations omitted).




                                       [J-112-2016] - 29
       Applying this test, the Anderson court first concluded that police officers’

“seizure” of a motorist who was in a parked car on the side of a highway, at night and in

below-zero temperatures, with his vehicle’s hazard lights on, was “minimally invasive” of

the motorist’s right to be free from arbitrary interferences by police because (1) the

vehicle was parked, not traveling down the highway; (2) there was no unduly excessive

display of authority or force, in that the only show of authority was the trooper’s use of

his overhead flashing lights and he did not draw his weapon or shout commands; and

(3) the officers detained the motorist only long enough to approach his vehicle and ask

whether he needed aid.      Id. at 1239-40.    With regard to the second inquiry − the

seriousness of the perceived emergency and the likelihood that the motorist needed aid

− the court opined that a “reasonable officer would have cause to be concerned about

the welfare of a motorist [who was] parked on the side of a highway with his hazard

lights flashing just before 10:00 p.m.” in very cold temperatures.               Id. at 1240.

Accordingly, the court held that the seizure was justified under the community

caretaking doctrine. Id.

       Wisconsin also has adopted a balancing test to determine whether an officer’s

actions are reasonable under the community caretaker function, balancing the “public

interest or need that is furthered by the officer’s conduct against the degree of and

nature of the restriction upon the liberty interest of the citizen.” Kramer, 759 N.W.2d at

610.   The stronger the public need and the more minimal the intrusion upon the

individual’s liberty, the more likely the police action will be deemed reasonable. Id. at

611.   The Wisconsin Supreme Court has cited the following factors as relevant in

assessing the balance between the public interest and a citizen’s liberty interest:

              (1) the degree of the public interest and exigency of the
              situation; (2) the attendant circumstances surrounding the
              seizure, including time, location, the degree of overt authority
              and force displayed; (3) whether an automobile is involved;


                                    [J-112-2016] - 30
              and (4) the availability, feasibility and effectiveness of
              alternatives to the type of intrusion actually accomplished.
Id.

       After considering the above factors, the court in Kramer determined that a police

officer’s act of pulling behind a vehicle that was legally parked on the side of the road at

night with its hazard lights activated, and the officer’s activation of his own emergency

lights, was reasonable under the community caretaker function because (1) the public

has an interest in ensuring that police assist motorists who may be stranded, particularly

at night; (2) the degree of overt authority was slight, as the officer’s use of his

emergency lights was for safety purposes, as was his act of pulling behind the driver’s

vehicle as opposed to beside it, which would have blocked a lane of traffic; (3) an

automobile was involved; and (4) if the driver was ill, a delay in help may have been

fatal, and if the driver’s vehicle was not working, the driver may have attempted to walk

along the highway, putting himself in danger. Id. at 611-12.

       This balancing test is also used in Illinois. In McDonough, the Illinois Supreme

Court explained that, in determining whether a seizure is justified under the community

caretaker exception, it “must balance a citizen’s interest in going about his or her

business free from police interference against the public’s interest in having police

officers perform services in addition to strictly law enforcement.” 940 N.E.2d at 1109.

In concluding that a police officer’s approach of a motorist’s car, which was pulled to the

side of a four-lane highway at night, was justified under the community caretaker

exception, the court noted that the public has an interest in ensuring that police officers

offer assistance to stranded motorists; the highway was busy; and the officer activated

his emergency lights because it was dark and there was a lot of traffic. Id. at 1109-10.

       While the above courts utilize a balancing test to determine whether a seizure

was justified under the community caretaking doctrine, many state courts have adopted



                                     [J-112-2016] - 31
variations of what has been referred to as a “reasonableness test.”             Montana, for

example, has adopted the following three-part test:

             First, as long as there are objective, specific and articulable
             facts from which an experienced officer would suspect that a
             citizen is in need of help or is in peril, then that officer has
             the right to stop and investigate. Second, if the citizen is in
             need of aid, then the officer may take appropriate action to
             render assistance or mitigate the peril.          Third, once,
             however, the officer is assured that the citizen is not in peril
             or is no longer in need of assistance or that the peril has
             been mitigated, then any actions beyond that constitute a
             seizure implicating … the protections provided by the Fourth
             Amendment.
State v. Lovegren, 51 P.3d 471, 475-76 (Mont. 2002).

      In Lovegren, a police officer observed a legally parked vehicle on the side of a

highway, with its motor running but its headlights off. He approached the vehicle, and,

seeing that the driver appeared to be asleep, knocked on the window. When the driver

did not respond, the officer opened the vehicle door and the driver woke up and stated

that he’d been drinking. The Montana Supreme Court concluded that the officer “had

objective, specific and articulable facts suggesting that Lovegren might be in need of

assistance. While Lovegren might simply have been asleep, he might just as likely

have been ill and unconscious and in need of help.” Id. at 476.

      In Williams, the Supreme Court of Delaware specifically adopted the three-part

test established by the Montana Supreme Court in Lovegren. Williams, 962 A.2d at 219

(“We adopt [the Lovegren] test to ensure that investigations conducted in Delaware

under the community caretaker doctrine are reasonable.”). The Williams court held that

a police officer’s act of pulling his vehicle approximately ten feet behind the defendant,

who was walking along the median of a highway at 3:50 a.m. on a cold and windy night,

activating his strobe light, and asking the defendant if he needed a ride, was reasonable

under the public servant exception under the community caretaking doctrine. Id. at 221.


                                    [J-112-2016] - 32
Specifically, it noted that the officer articulated objective and specific facts − the weather

and the hour of the morning − that would lead an experienced officer to conclude that

the defendant needed assistance. Id.

       The Tennessee Supreme Court, in McCormick, adopted a test similar to the

Lovegren test, and held that the community caretaking exception will justify a

warrantless search if:

              the State establishes that (1) the officer possessed specific
              and articulable facts which, viewed objectively and in the
              totality of the circumstances, reasonably warranted a
              conclusion that a community caretaking action was needed,
              such as the possibility of a person in need of assistance or
              the existence of a potential threat to public safety; and (2)
              the officer’s behavior and the scope of the intrusion were
              reasonably restrained and tailored to the community
              caretaking need.
494 S.W.3d at 687 (citation omitted).

       Utilizing this test, the court determined that a police officer’s act of approaching a

vehicle that was parked between the entrance of a parking lot and the roadway, with its

engine running, radio and headlights on, and a man slumped over the steering wheel,

was necessary and reasonable because the occupant of the vehicle was “either asleep

or unconscious, with his vehicle protruding partially onto the public roadway, placing him

at risk of injury or death from a rear end collision.” Id. at 688. Thus, the court held that

the officer’s actions were justified under the community caretaking function.

       In Kleven, the South Dakota Supreme Court implicitly adopted a reasonableness

test when it explained that the following elements must be established in order for the

community caretaking doctrine exception to apply:

              the purpose of community caretaking must be the objectively
              reasonable independent and substantial justification for the
              intrusion; the police action must be apart from the detection,
              investigation, or acquisition of criminal evidence; and the



                                     [J-112-2016] - 33
              officer should be able to articulate specific facts that, taken
              with rational inferences, reasonably warrant the intrusion.
887 N.W.2d at 743 (citation omitted). Noting that “the community caretaking function is

more akin to a health and safety check,” the court held that police officers’ entry into a

vehicle that was parked on the side of the road at 2:00 a.m., with its engine running,

where the driver appeared to be sleeping or passed out, in a location where the officers

had seen the vehicle in the same spot an hour earlier, was justified under the

community caretaking doctrine because it was reasonable for the officers to believe the

driver might need assistance. Id.

       The West Virginia Supreme Court, in Ullom, adopted a test that includes the

three prongs of the test utilized in South Dakota, but added an additional requirement

that the state establish that, “[g]iven the totality of the circumstances, a reasonable and

prudent police officer would have perceived a need to promptly act in the proper

discharge of his or her community caretaker duties.” 705 S.E.2d at 122. In Ullom, the

court concluded that a state trooper who observed the defendant’s vehicle, which had

its parking lights on and was parked in front of a gate blocking a dirt road at dusk, was

reasonable under the community caretaking doctrine because “a reasonable and

prudent officer in such a setting would have reasonably suspected that an occupant of

the vehicle was in need of immediate help,” and because the officer’s motivation was to

check on her safety. Id. at 123.

       Vermont and Mississippi likewise have adopted tests that require police officers

to be able to point to specific and articulable facts which would reasonably suggest that

an individual was in need of assistance. Indeed, in Hinton, the Vermont Supreme Court

observed that its test for the community caretaking exception for a traffic stop “has

consistently turned on whether there were specific and articulable facts objectively

leading the officer to reasonably believe that the defendant was in distress or needed



                                    [J-112-2016] - 34
assistance, or reasonably prompted an inquiry in that regard.” 112 A.3d at 773-74

(citation omitted). In Trejo, the Supreme Court of Mississippi explained that, in applying

the community caretaking function, the “ultimate standard” is reasonableness, and, in

evaluating whether a stop is objectively reasonable, it looks to whether the officer can

point to “specific and articulable facts which, taken together with rational inferences from

those facts, reasonably warrant” the stop. 86 So.3d at 689.

       A number of states have adopted tests which encompass elements of both the

balancing and reasonableness tests. In Hawkins, for example, the Court of Appeals for

the District of Columbia adopted “a hybrid of the reasonableness and balancing tests, in

light of the totality of the circumstances, to assess whether an officer’s community

caretaking conduct comports with the Fourth Amendment:”

              In order for a law enforcement officer's community
              caretaking conduct to be reasonable, the government must
              show: 1) by specific and articulable facts that the
              government's conduct was totally divorced from the
              detection, investigation, or acquisition of evidence relating to
              the violation of a criminal statute; 2) the government's
              conduct was reasonable considering the availability,
              feasibility, and effectiveness of alternatives to the officer's
              action; 3) the officer's action ended when the citizen or
              community was no longer in need of assistance; 4) the
              government's interests outweigh the citizen's interest in
              being free from minor government interference. This court
              does not require the government to pursue the least
              restrictive means of correcting the problem.
113 A.3d at 221-22. The Hawkins court held that, under the foregoing test, an officer’s

entry into an idling vehicle in a parking lot in order to turn it off after approaching the

individual standing outside of the vehicle was reasonable under the community

caretaking function. Id. at 222-23.

       Similarly, the New Hampshire Supreme Court, in Boutin, explained that, in order

to justify a seizure of a motorist under the community caretaking exception, a police



                                      [J-112-2016] - 35
officer “must be able to point to specific and articulable facts which, taken together with

rational inferences from those facts, reasonably warrant the intrusion.” 13 A.3d at 143

(citation omitted). The court noted that, in determining whether a seizure by a police

officer acting in a non-investigatory capacity is reasonable, it must “balance the

governmental interest in the police officer’s exercise of his or her community caretaking

function and the individual’s interest in being free from arbitrary government

interference.” Id. (citation omitted). Under this standard, the Boutin court determined

that a police officer’s act of parking behind a motorist’s vehicle − which was parked

legally in a pull-off area, but was facing the opposite direction of traffic − and activating

his emergency lights was not reasonable because the officer did not offer any specific

and articulable facts suggesting that the occupant of the vehicle needed assistance,

other than the fact that it was dark and there was snow on the ground. Id.

       Finally, we note that several courts, including the Nebraska Supreme Court, have

adopted a “totality of the circumstances” test to determine the reasonableness of a stop,

which requires a general assessment of “the totality of the circumstances surrounding

the stop, including ‘all of the objective observations and considerations, as well as the

suspicion drawn by a trained and experienced officer by inference and deduction’” that

assistance might be needed. Bakewell, 730 N.W.2d at 339. In Bakewell, the court

determined that an officer’s act of pulling behind the defendant’s vehicle after the

defendant pulled off the road was justified under the community caretaking exception

because the defendant’s vehicle had slowed down five times while traveling on the

highway before it pulled off the road completely and, “[c]onsidering the totality of the

circumstances, it was reasonable” for the officer to conclude that the defendant was lost

or that something was wrong with the defendant or his vehicle. Id.; see also State v.

Wixom, 947 P.2d 1000, 1002 (Idaho 1997) (to be justified pursuant to a community




                                     [J-112-2016] - 36
caretaking function, the intrusive action of the police must be reasonable in view of all

the surrounding circumstances, and the officer’s stop of a vehicle in order to locate

witnesses to an earlier accident was not reasonable).

       In the instant case, Appellant urges this Court to adopt the “reasonableness test”

set forth by the Montana Supreme Court in Lovegren, which requires, inter alia, that a

police officer point to specific and articulable facts which led him or her to believe that

assistance was necessary, and an objective assessment by the court as to whether the

officer’s belief was reasonable.    Appellant’s Brief at 30.     In this regard, Appellant

emphasizes:

              An officer’s hunch his or her assistance may be needed is
              insufficient. Someone who has legally and safely pulled over
              on the side of the road may be looking at a map, talking on a
              cell phone, sending a text message, or picking up an item
              dropped on the floor of the car. These are all otherwise
              lawful activities; distracting activities drivers are encouraged
              to avoid engaging in while driving, or actually criminally
              punished for performing.
Id. at 31 (emphasis original).      In its brief discussion, based on its citations to

McDonough and Anderson, supra, the Commonwealth seemingly supports the use of a

balancing test, although it also argues that Trooper Frantz’s actions were reasonable.

Commonwealth’s Brief at 10.         After careful consideration, we conclude that the

reasonableness test best accommodates the interests underlying the public servant

exception while simultaneously protecting an individual’s Fourth Amendment right to be

free from unreasonable searches and seizures.

       Specifically, we first hold that, in order for the public servant exception of the

community caretaking doctrine 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. See Lovegren, 51 P.3d at 475-76 (“as long as




                                    [J-112-2016] - 37
there are objective, specific and articulable facts from which an experienced officer

would suspect that a citizen is in need of help or is in peril, then that officer has the right

to stop and investigate”); Williams, 962 A.2d at 219 (if there are “objective, specific and

articulable facts from which an experienced officer would suspect that a citizen is in

apparent peril, distress or need of assistance, the police officer may stop and

investigate for the purpose of assisting the person”); McCormick, 494 S.W.3d at 687

(community caretaking exception will justify a warrantless seizure if, inter alia, “the

officer possessed specific and articulable facts which, viewed objectively and in the

totality of the circumstances, reasonably warranted a conclusion that a community

caretaking action was needed”); Kleven, 887 N.W.2d at 743 (an officer “should be able

to articulate specific facts that, taken with rational inferences, reasonably warrant the

intrusion”); Ullom, 705 S.E.2d at 122 (same).

       As Appellant suggests, there are many reasons why a driver might pull to the

side of a highway: the driver may need to look at a map, answer or make a telephone

call, send a text message,13 pick something up off the floor, clean up a spill, locate

something in her purse or in his wallet, retrieve something from the glove compartment,

attend to someone in the back seat, or, as in the instant case, enter an address into the

vehicle’s navigation system. Pulling to the side of the road to perform any of these

activities is encouraged, as a momentary distraction while driving may result in

catastrophic consequences.

       The Illinois Supreme Court observed in McDonough:

              Most people who appear to be in distress would welcome a
              genuine offer of police assistance. But permitting police to

13
   Indeed, 75 Pa.C.S. § 3316(a) prohibits the operation of a vehicle “while using an
interactive wireless communications device to send, read or write a text-based
communication while the vehicle is motion.”



                                      [J-112-2016] - 38
             search or seize whenever they might be pursuing
             community-caretaking goals risks undermining constitutional
             protections. The challenge of [the] community-caretaking
             doctrine is to permit helpful police to fulfill their function of
             assisting the public, while ensuring that searches for law-
             enforcement purposes satisfy the requirements of the Fourth
             Amendment.
940 N.E.2d at 1109 (quoting M. Dimino, Police Paternalism: Community Caretaking,

Assistance Searches, and Fourth Amendment Reasonableness, 66 Wash. & Lee L.

Rev. 1485, 1562-63 (2009)). Requiring an officer to articulate specific and objective

facts that would suggest to a reasonable officer that assistance is needed will cabin

reliance on the exception and enable courts to properly assess its employment.

      Second, we hold that, in order for the public servant exception of the community

caretaking doctrine to apply, the police caretaking action must be independent from the

detection, investigation, and acquisition of criminal evidence. As noted above, this is a

common requirement to warrantless searches under all three exceptions of the

community caretaking doctrine, including the emergency aid exception and the

automobile impoundment/inventory exceptions. To describe this requirement, courts

have utilized various terminology. In Cady, the high Court observed that police officers

often engage in community caretaking functions which are “totally divorced” from the

detection or investigation of crime. 413 U.S. at 441.14 The South Dakota Supreme

14
   There is some debate as to whether the high Court’s “totally divorced” language was
intended to be observational or prescriptive. At least one court has included this precise
language in its test for determining whether a warrantless search was permissible under
the community caretaking doctrine. See, e.g., Hawkins, 113 A.3d at 222 (D.C. Court of
Appeals specifically holding that, in order for a seizure to be permissible under the
community caretaking doctrine, the police action be “totally divorced” from the detection
and investigation of criminal activity). Other courts, however, have concluded that
“Cady was merely observing that community caretaker functions are ‘totally divorced’
from an officer’s law enforcement function because a different facet of police work is
paramount in a community caretaker function than is paramount in a law enforcement
function.” Kramer, 759 N.W.2d at 609; see also McCormick, 494 S.W.3d at 687 (“We
do not interpret [the language of Cady] as requiring consideration of a police officer’s
(continued…)

                                    [J-112-2016] - 39
Court, in Kleven, explained that, for a warrantless search to be permissible under the

community caretaking doctrine, “the police action must be apart from the detection,

investigation, or acquisition of criminal evidence.”    887 N.W.2d at 743 (emphasis

added); see also Ullom, 705 S.E.2d at 122 (“The police officer’s action must be apart

from the intent to arrest, or the detection, investigation, or acquisition of criminal

evidence.”). In McDonough, the Illinois Supreme Court approved a warrantless search

under the community caretaking exception because, inter alia, the “defendant’s seizure

was unrelated to the investigation of crime.” 940 N.E.2d at 1109 (emphasis added).

The North Dakota Supreme Court has explained that police action taken under the

community caretaking doctrine must be “separate from the detection, investigation, or

acquisition of evidence relating to the violation of a criminal statute.” City of Fargo v

Sivertson, 571 N.W.2d 137, 140 (N.D. 1997) (emphasis added). Regardless of the

language used, a critical component of the community caretaking doctrine is that the

police officer’s action be based on specific and articulable facts which, viewed

objectively and independent of any law enforcement concerns, would suggest to a

reasonable officer that assistance is needed.

      We are not suggesting, however, that an officer’s contemporaneous subjective

concerns regarding criminal activity will preclude a finding that a seizure is valid under

the community caretaking function. The Wisconsin Supreme Court addressed a similar

argument in Kramer, wherein the motorist argued that the “totally divorced” language

from Cady “means that the officer must have ruled out any possibility of criminal activity

before the community caretaker function is bona fide.” 759 N.W.2d at 606. In rejecting

the motorist’s suggestion, the court reasoned:

(…continued)
subjective intentions.”). We likewise are of the view that the high Court’s statement in
Cady was more of an observation by the Court rather than a specific requirement.



                                    [J-112-2016] - 40
             [T]he nature of a police officer’s work is multifaceted. An
             officer is charged with enforcing the law, but he or she also
             serves as a necessary community caretaker when the officer
             discovers a member of the public who is in need of
             assistance. As an officer goes about his or her duties, an
             officer cannot always ascertain which hat the officer will
             wear−his law enforcement hat or her community caretaker
             hat. For example, an officer may come upon what appears
             to be a stalled vehicle and decide to investigate to determine
             if assistance is needed; however, the investigation may
             show that a crime is being committed within the vehicle.
             Therefore, from the point of view of the officer, he or she
             must be prepared for either eventuality as the vehicle is
             approached.       Accordingly, the officer may have law
             enforcement concerns, even when the officer has an
             objectively reasonable basis for performing a community
             caretaker function.

                   To conclude otherwise would ignore the multifaceted
             nature of police work and force police officers to let down
             their guard and unnecessarily expose themselves to
             dangerous conditions.

                    Furthermore, to interpret the “totally divorced”
             language in Cady to mean that an officer could not engage
             in a community caretaker function if he or she had any law
             enforcement concerns would, for practical purposes,
             preclude police officers from engaging in any community
             caretaker functions at all. This result is neither sensible nor
             desirable.
759 N.W.2d at 608-09 (internal citations omitted).     The court concluded that, “in a

community caretaker context, when under the totality of the circumstances an

objectively reasonable basis for the community caretaker function is shown, that

determination is not negated by the officer’s subjective law enforcement concerns.” Id.

at 608; see also Smathers, 753 S.E.2d at 386 (adopting an “objective method of inquiry

into the purpose of a seizure in the community caretaking context,” and declining to

adopt a test where subjective concerns of crime prevention and investigation negate

public safety concerns); cf Brigham City, Utah v. Stuart, 547 U.S. 398, 404 (2006) (“An



                                   [J-112-2016] - 41
action is ‘reasonable’ under the Fourth Amendment, regardless of the individual officer’s

state of mind, ‘as long as the circumstances, viewed objectively justify [the] action.’ The

officer’s subjective motivation is irrelevant.” (emphasis original, citations omitted)).

       We agree that it is not realistic or wise to expect an officer to ignore the nature of

his or her role in law enforcement − or its inherent dangers − in order for the public

servant exception of the community caretaking doctrine to apply. Thus, so long as a

police officer is able to point to specific, objective, and articulable facts which, standing

alone, reasonably would suggest that his assistance is necessary, a coinciding

subjective law enforcement concern by the officer will not negate the validity of that

search under the public servant exception to the community caretaking doctrine. We

caution, however, that “when the community caretaking exception is involved to validate

a search or seizure, courts must meticulously consider the facts and carefully apply the

exception in a manner that mitigates the risk of abuse.” McCormick, 494 S.W.3d at 688.

       Finally, we hold that, in order for the public servant exception to apply the level of

intrusion must be commensurate with the perceived need for assistance.                     See

McCormick, 494 S.W.3d at 687 (the officer’s behavior and the scope of the intrusion

must be “reasonably restrained and tailored to the community caretaking need”);

Lovegren, 51 P.3d at 476 (“if the citizen is in need of aid, then the officer may take

appropriate action to render assistance or mitigate the peril. . . . [O]nce, however, the

officer is assured that the citizen is not in peril or is no longer in need of assistance or

that the peril has been mitigated, then any actions beyond that constitute a seizure

implicating . . . the protections provided by the Fourth Amendment.”); Williams, 962

A.2d at 219 (same).          Such a determination requires an assessment of the

circumstances surrounding the seizure, including, but not necessarily limited to, the




                                      [J-112-2016] - 42
degree of authority or force displayed, the length of the seizure, and the availability of

alternative means of assistance.15

      To summarize, in order for a seizure to be justified under the public servant

exception to the warrant requirement under the community caretaking doctrine, the

officer must point to specific, objective, and articulable facts which would reasonably

suggest to an experienced officer that assistance was needed; the police action must be

independent from the detection, investigation, and acquisition of criminal evidence; and,

based on a consideration of the surrounding circumstances, the action taken by police

must be tailored to rendering assistance or mitigating the peril. Once assistance has

been provided or the peril mitigated, further police action will be evaluated under

traditional Fourth Amendment jurisprudence.

C. Application of the Public Servant Exception under the Community Caretaking

                                        Doctrine

      Applying the standard we have adopted today, we must now determine whether

the seizure of Appellant was justified under the public servant exception. A review of

the record reveals that Trooper Frantz was on routine patrol on Interstate 79 at

approximately 9:30 p.m. on June 14, 2013 when he observed Appellant’s vehicle on the

right shoulder of the road. At the suppression hearing, Trooper Frantz testified:

             I pulled beside her with my window already down, just,
             number one, to make sure, see if anybody was in this
             vehicle, and then, if there was, to make contact with her and
             then see if she needed any assistance. Nine out of ten
             times usually they’re on their cell phone, I just give them a
             quick wave and I’m on my way.


15
    These factors are consistent with the evaluation of the level of intrusion into the
citizen’s freedom required under the balancing test. See Anderson, 362 P.3d at 1239;
Kramer, 759 S.W.2d at 611.



                                     [J-112-2016] - 43
N.T. Suppression Hearing, 5/28/14, at 7.

      We have no reason to doubt Trooper Frantz’s statement that he pulled alongside

Appellant’s vehicle simply to check to see whether she needed assistance. However,

regardless of his intentions, based on our review of the record, Trooper Frantz was

unable to articulate any specific and objective facts that would reasonably suggest that

Appellant needed assistance.      Indeed, Trooper Frantz conceded that he had not

received a report of a motorist in need of assistance, and did not observe anything that

outwardly suggested a problem with Appellant’s vehicle. Moreover, although it was

dark, the weather was not inclement. Finally, Appellant, who was inside her vehicle, did

not have her hazard lights on.

      Thus, we are constrained to hold that Trooper Frantz’s seizure of Appellant was

not justified under the public servant exception, and, therefore, that the evidence

obtained as a result of that seizure should have been suppressed at trial.

                                     III. Conclusion

      In summary, we conclude that, because a reasonable person in Appellant’s

position would not have felt free to leave after Trooper Frantz pulled his patrol car, with

its emergency lights activated, alongside her vehicle, Appellant was seized and

subjected to an investigative detention. Furthermore, we recognize that a warrantless

search or seizure may nonetheless be deemed reasonable under the Fourth

Amendment when conducted pursuant to the public servant exception to the warrant

requirement under the community caretaking doctrine. However, we hold that Trooper

Frantz’s seizure of Appellant was not justified under the public servant exception, and,

thus, that the evidence obtained as a result of Trooper Frantz’s investigative detention

of Appellant should have been suppressed. For these reasons, we reverse the order of




                                    [J-112-2016] - 44
the Superior Court, vacate Appellant’s judgment of sentence, and remand the matter to

the Superior Court for remand to the trial court for further proceedings.



       Chief Justice Saylor and Justice Dougherty join the opinion in full.

       Justice Baer joins Parts I, II(A), and II(B) of the opinion and files a concurring and

dissenting opinion.

       Justice Donohue joins Parts I, II(A), and III of the opinion and files a concurring

and dissenting opinion in which Justice Wecht joins.

       Justice Mundy files a dissenting opinion.




                                     [J-112-2016] - 45
