                                   [J-16-2015]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA, :                No. 111 MAP 2014
                              :
               Appellant      :                Appeal from the Order of the Superior
                              :                Court dated January 15, 2014,
                              :                Reconsideration Denied March 27, 2014,
          v.                  :                at No. 91 EDA 2013 Affirming the Order of
                              :                the Court of Common Pleas of Monroe
                              :                County, Criminal Division, at No.
TIFFANY LEE BARNES,           :                CP-45-CR-1473-2012 dated December 5,
                              :                2012.
               Appellee       :
                              :                ARGUED: March 11, 2015


                               DISSENTING STATEMENT


MR. JUSTICE EAKIN                                                FILED: August 25, 2015

       I respectfully dissent from the per curiam affirmance of the Superior Court’s order.

This result affirms the proposition that a police officer’s activation of overhead lights on a

patrol car automatically creates an investigative detention of those in the area; if

reasonable suspicion is not extant, turning on those lights is per se an unconstitutional act

of detention, tainting everything that follows. This is a head-scratchingly terrible result,

which should not be given approbation by this court’s affirmance.

       At approximately 3:00 a.m. in a dark and rural area, a passing state trooper saw

appellee pull her vehicle off the roadway and park between two auto dealerships that had

long been closed for the night. She turned off her car’s lights; she did not activate her

four-way blinkers. Seeing this obviously anomalous action given the time and place, the

trooper pulled behind her vehicle, activated his overhead lights, and got out to approach
on foot.     At this point, appellee got out of her vehicle, unbidden, and the officer

immediately noticed strong indicia of intoxication, eventually leading to sobriety tests and

a BAC test showing a level of 0.22% (nearly three times the statutory limit).

         The rationale of both the trial court and Superior Court was that the use of

overhead lights amounted to a seizure because it caused appellee to feel less than free to

leave; as there was no articulable suspicion of criminal activity when the lights went on,

the officer’s actions were deemed unconstitutional. The issue is thus whether an officer

without articulable suspicion may constitutionally turn on the overhead lights before

approaching a car; to affirm this suppression order, one must find the officer was not

allowed to do so, on pain of violating the Constitution.

         In the first place, both the Superior Court and the suppression court applied the

wrong analytical standard; this fundamental error alone calls for reversal. Both courts

relied significantly on subjective testimony. See Commonwealth v. Barnes, No. 91 EDA

2013, unpublished memorandum at 8-9 (Pa. Super. filed January 15, 2014); Suppression

Court Opinion, 12/5/12, at 7 (“[T]he arresting officer has conceded that [appellee] was not

free to leave once he pulled behind [her] and turned on his overhead lights. [Appellee]

also testified that she did not feel free to leave when this occurred. We find these

circumstances weigh heavily in favor of finding an investigatory detention.”). This was

error.

         Subjective views are immaterial to these determinations.        Commonwealth v.

Lyles, 97 A.3d 298, 302 (Pa. 2014) (citation omitted). The trial court erred in considering

them as factors, and the Superior Court did as well, even after citing the proper standard:

an objective test. Under the correct analytical test, what the parties thought is irrelevant;




                                      [J-16-2015] - 2
what must be conducted is “an objective examination of the totality of the surrounding

circumstances.” Id. (citing Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000)).

No single factor is determinative of whether a seizure occurred. Id. (citation omitted).

The totality-of-the-circumstances test “ultimately center[s] on whether the suspect has in

some way been restrained by physical force or show of coercive authority.” Id. (citation

omitted). While citing proper law, the Superior Court made no totality examination

beyond the use of lights, the subjective and understandable acknowledgement by the

officer that her driving away after his approach would cause him to find out why, and

appellee’s subjective reaction (apparently the lights specifically triggered the legal

talismanic phrase, “Gosh, now I am no longer free to leave!”).

       Beyond the wrong standard, the syllogism of the courts below is a model of

paralysis by analysis. The analysis goes like this: as appellee said she did not feel free

to leave, she was subject to detention, and as the officer did not articulate a basis for

detention, his action in turning on his lights was “coercive authority” without justification,

violative of her constitutional rights. The paralysis is that this officer apparently had only

two constitutionally permitted options: either (1) pull in behind her very quietly, so he

would not alert the driver to his identity in the dark, at 3 a.m., ignoring the manifest safety

risks and the likelihood of scaring the driver half to death when he popped out of the dark;

or (2) ignore the vehicle altogether and go blissfully down the road thinking, “Gee whiz, I

wonder what that was all about.” The latter would be a dereliction of duty; the former is a

good way to give the driver a heart attack or to get the officer shot.

         The words “feel free to leave” are a catchphrase, a shorthand mantra when

assessing whether a seizure occurred — if a reasonable innocent person would not feel




                                       [J-16-2015] - 3
free to end the encounter and leave, there is a seizure. See, e.g., Strickler, at 889

(citation omitted). This has always been problematic in the area of traffic stops, where

one is not immediately free to leave but knows that the interaction will be relatively brief,

not really an arrest at all. But see Delaware v. Prouse, 440 U.S. 648, 653 (1979)

(“[S]topping an automobile and detaining its occupants constitute a ‘seizure’ within the

meaning of th[e Fourth and Fourteenth] Amendments, even though the purpose of the

stop is limited and the resulting detention quite brief.” (citations omitted)).

       Here, there was no stop. If an officer’s mere approach of persons not in motion

were to be held inherently coercive in and of itself, analysis would be simple, but such an

approach is not objectively coercive, and caselaw says so. Neither is it the law that the

use of overhead lights can only be a per se, mandatory “you are under detention and no

longer free to leave” order, leaving no other objective possible conclusion; yet that is what

the courts below would have.

       This is the mischief of subjective versus objective reaction.              The subjective

reaction when you are intoxicated may be “uh oh” and you properly worry about discovery

and detention; when your car is disabled, the subjective reaction is “Thank goodness,

help has arrived.”1 Clearly, subjective reactions, necessarily subject to many variables,

cannot be the test. The objective test therefore looks more broadly, and requires more

than an act that may engender entirely dissimilar reactions.            Activating lights can

provoke different reactions, but it does not constitute objective unconstitutional behavior

that allows every accused to say “I didn’t feel free to leave,” thus comprising recognized

1  Let us not forget that the thankful stranded motorist will seldom be in court to remind us
of this alternate reaction to an officer’s approach — we only hear the others. Ironically, it
is the officer’s approach that gives the innocent motorist hope that soon they can leave.



                                       [J-16-2015] - 4
detention and illegality, absent articulable suspicion.            Objectively, lights equal

identification, and identification as an officer does not constitute coercive authority.

        Thus, when the courts below concluded the use of lights comprised an

investigative detention that required reasonable suspicion, they erred; the Constitution

was not violated just because the officer activated his lights without suspecting criminal

activity.   Objectively, all this officer did was park behind appellee’s vehicle with his

overhead lights on. He had obvious reason to do so, but did nothing to block her vehicle.

He did not restrain her movement or interrupt her travels. He did not cause her to pull

over, and he did not direct her to her chosen stopping place, a gravel pull-out between two

closed businesses at three o’clock in the morning. He did not brandish a weapon or do

anything else to show force. He did not give her orders. The use of the overhead lights

was the single objective factor bearing on the alleged unconstitutionality of the officer’s

actions. That this is found to be a constitutional violation indicates the myopic nature of

the subjective “I didn’t feel free to leave so I was illegally detained” analysis applied here.

        There being no other objective factors before appellee exited her car and

demonstrated her intoxication, let us consider the use of the overhead lights. The lights

served two obvious and significant purposes.          First, the lights were turned on for

everyone’s safety, alerting other motorists to their roadside presence in the middle of a

dark, rural night. N.T. Pre-Trial Hearing, 6/22/12, at 10 (“I wanted to be visible at that

point for our safety in case other vehicles came down that road.”). Second, the officer’s

overhead lights identified him as a police officer, whose sudden and otherwise

unidentified appearance in an unlit and empty area in the wee hours of the morning would

likely create considerable fear in the occupants of the vehicle.




                                       [J-16-2015] - 5
       However, according to the courts below, a reasonable citizen must apparently

ignore these legitimate and justified reasons for the lights. Instead of thinking, “Oh,

thank goodness, that car isn’t a rapist; it’s an officer — and good, he’s got his lights on for

safety,” the single objective conclusion a reasonable innocent person is permitted to

make is that if the lights go on, they are being detained. But see Commonwealth v.

Johonoson, 844 A.2d 556, 562 (Pa. Super. 2004) (“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.”). Given the utility of the lights in identifying the

approaching officer, and keeping the officer, appellee, and all passing motorists safe, it is

unreasonable to find engaging the overhead lights escalated this encounter into an

investigatory detention. See Commonwealth v. Au, 42 A.3d 1002, 1008 (Pa. 2012) (“In

terms of the use of the arresting officer’s headlights and flashlight [to illuminate the parked

vehicle], this was in furtherance of the officer’s safety, and we conclude it was within the

ambit of acceptable, non-escalatory factors.”).

       Suppression is primarily a tool to deter illegal governmental actions — denying the

government the fruits of illegal searches or seizures. However, suppression is not a

reward for those who sell truncated analysis that weaves leaden facts into syllogistic gold.

If you cannot point to the officer’s conduct and say “Here is a forbidden, illegal act,”

suppression will not lie. I cannot in good faith point to such a place here. Where was

the illegality? Did the officer somehow run afoul of the law by stopping to check on this

car?   Can it really be that the officer’s use of overhead lights was unconstitutional




                                       [J-16-2015] - 6
behavior? Can one explain to a citizen exactly what this officer did wrong, what act

precluded prosecution of this case? Can one do so looking them in the eye?

       Every once in a while, courts must step back from talismanic phrases and look at

the reality of what is being announced as the law. If the officer acted illegally here, every

officer in the Commonwealth stands to violate the Constitution every night, and this simply

can never be the law. This officer acted completely reasonably and did not violate

appellee’s constitutional rights, and courts should not simply parrot snippets of analysis,

creating a result that is both myopic and illogical.

       As this decision should not stand, I cannot join the per curiam decision affirming it.

       Mr. Justice Stevens joins this dissenting statement.




                                       [J-16-2015] - 7
