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


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


                    CONCURRING AND DISSENTING OPINION


JUSTICE DONOHUE                                 DECIDED: NOVEMBER 27, 2017

      I join the Majority in holding that Ms. Livingstone was subjected to an

investigative detention when Trooper Franz pulled his marked cruiser – emergency

lights activated – alongside her parked vehicle on the shoulder of I-79. The Court’s

express rejection of the myth that a reasonable person in the circumstances presented

would have believed she was free to leave finally comports the law with reality.

Because Trooper Franz concededly lacked reasonable suspicion that any criminal

activity was underway when he detained Ms. Livingstone, we must address whether the

seizure was nonetheless justified.    Accordingly, we decide whether Pennsylvania

should, pursuant to a “community caretaking” rationale, recognize a “public servant”

exception to the Fourth Amendment’s warrant requirement.

      I agree with the Majority that adopting a public servant exception is appropriate

and I would also hold that the exception has no application under the facts presented
here.1 I write separately because I diverge from the Majority on two points. First, I

believe it is critical to recognize that Cady v. Dombrowski, 413 U.S. 433 (1973), did not

create an exception to the Fourth Amendment warrant requirement that is nearly as

broad or intrusive as the one we recognize today. Cady is foundational because it

recognized that, in addition to law enforcement, police legitimately perform community

caretaking functions which may, in part, provide the rationale for recognizing an

exception to the warrant requirement. Id. at 441. That said, the warrantless seizure of

an individual motorist contemplated here is poles apart from the warrantless inventory

search of an impounded automobile, conducted pursuant to standard police procedure,

validated by Cady. Because, drawing from Cady, we recognize today that our police

officers sometimes legitimately detain motorists solely in the pursuit of rendering aid, I

agree that we should validate such seizures by also recognizing a public servant

exception to the Fourth Amendment’s warrant requirement in specifically defined

circumstances.

      Second, in light of the magnitude of the government intrusion we are authorizing

today, I strongly disagree with the “independent from” language employed in the second

prong of the Majority’s “reasonableness” test. In my view, we must, at a minimum, hold



1
   We are considering a community caretaker exception to the warrant requirement,
under limited circumstances, pursuant to the Fourth Amendment of the United States
Constitution. No party has raised, and we do not address, whether such an exception
would pass muster under Article I, Section 8 of the Pennsylvania Constitution. I note
that this Court has interpreted Article I, Section 8 as providing privacy protections
beyond those ensured by the United States Constitution. See Commonwealth v.
Edmunds, 586 A.2d 887, 899 (Pa. 1991) (emphasizing that the Pennsylvania
Constitution “has historically been interpreted to incorporate a strong right of privacy,
and an equally strong adherence to the requirement of probable cause under Article 1,
Section 8").



                             [J-112-2016] [MO: Todd, J.] - 2
true to the parameters established in Cady when relying on the caretaking function of

our police officers to allow a seizure. I view Cady’s requirement that the caretaking

function must be totally divorced from any law enforcement purpose to be an essential

safeguard to protecting the Fourth Amendment rights of Pennsylvania motorists, on

whom this new “public servant” exception will have an enormous impact. See Cady,

413 U.S. at 441.

      The Fourth Amendment provides:

             The right of the people to be secure in their persons, houses,
             papers, and effects, against unreasonable search 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 search, and the
             persons or things to be seized.

U.S. Const. amend. IV. The high Court has explained that the Fourth Amendment

imposes two requirements: all searches and seizures must be reasonable, and a

warrant may not be issued unless probable cause is properly established and the scope

of the authorized search is set out with particularity. Kentucky v. King, 563 U.S. 452,

459 (2011) (citing Payton v. New York, 445 U.S. 573, 584 (1980)). This is because “the

basic purpose of the Fourth Amendment … is to safeguard the privacy and security of

individuals against arbitrary invasions by government officials.” Camara v. Municipal

Court, 387 U.S. 523, 528 (1967).2



2
   The Fourth Amendment does not contemplate a benevolent, or “caretaking,”
government. Rather, “the central meaning of the Fourth Amendment is distrust of police
power and discretion” and its “underlying vision … places the magistrate as a buffer
between the police and the citizenry, so as to prevent the police from acting as judges in
their own cause.” Tracey Maclin, The Central Meaning of the Fourth Amendment, 35
Wm. & Mary L. Rev. 197, 201, 213-14 (1993) (noting that the Fourth Amendment
“synchronizes with other parts of the Constitution designed to limit governmental
(continued…)

                             [J-112-2016] [MO: Todd, J.] - 3
       While a warrant is generally necessary, Fourth Amendment jurisprudence has

developed so that a search or seizure may be deemed reasonable absent a warrant if

one of a few well-defined exceptions applies. Birchfield v. North Dakota, 136 S.Ct.

2160, 2173 (2016). These exceptions include, inter alia, exigent circumstances, see

Kentucky, 563 U.S. 452; the “plain view” exception, see Horton v. California, 496 U.S.

128 (1990); searches incident to arrest, see United States v. Robinson, 414 U.S. 218

(1973); consent searches, see Schneckloth v. Bustamonte, 412 U.S. 218 (1973); and

automobile searches, see California v. Carney, 471 U.S. 386 (1985). A police officer

may also briefly detain a person without a warrant or probable cause, so long as the

officer possesses a reasonable suspicion that the individual is or is about to be engaged

in criminal activity. See United States v. Cortez, 449 U.S. 411, 417 (1981); see also


(…continued)
powers”); cf. Ronald J. Bacigal, Some Observations and Proposals on the Nature of the
Fourth Amendment, 46 Geo. Wash. L. Rev. 529, 558 (1978) (“The Bill of Rights … and
the fourth amendment in particular are restrictions on unfettered governmental power
rather than reflections of natural law rights.”).

Jurists and scholars alike have described the broad principle in similar terms. See, e.g.,
Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (The
framers “conferred, as against the Government, the right to be let alone—the most
comprehensive of rights and the right most valued by civilized men. To protect that right,
every unjustifiable intrusion by the Government upon the privacy of the individual,
whatever the means employed, must be deemed a violation of the Fourth
Amendment.”); Boyd v. United States, 116 U.S. 616, 635 (1886) (“[C]onstitutional
provisions for the security of person and property should be liberally construed. A close
and literal construction deprives them of half of their efficacy, and leads to gradual
depreciation of the right, as if it consisted more in sound than in substance. It is the duty
of courts to be watchful for the constitutional rights of the citizen, and against any
stealthy encroachments thereon.”); Jacob W. Landynski, Search and Seizure and the
Supreme Court 47 (1966) (“[T]he Fourth Amendment embodies a spiritual concept: the
belief that to value the privacy of home and person and to afford it constitutional
protection against the long reach of government is no less than to value human dignity,
and that this privacy must not be disturbed except in case of overriding social need, and
then only under stringent procedural safeguards.”)



                              [J-112-2016] [MO: Todd, J.] - 4
Terry v. Ohio, 392 U.S. 1 (1968) (validating pat down for weapons for protection of

officer, absent probable cause, if officer has “reason to believe he is dealing with an

armed and dangerous individual”). Additionally, in recognition that police officers have

certain administrative duties, the United States Supreme Court has sanctioned

warrantless inventory searches of automobiles in lawful police custody, absent probable

cause or reasonable suspicion, where the searches are performed pursuant to

standardized procedures. See, e.g., Harris v. United States, 390 U.S. 234, 237 (1968).

       Cady is an inventory search case.3 In Cady, the Supreme Court considered

whether a driver’s Fourth Amendment rights had been violated when local Wisconsin

police conducted a warrantless search of his car. The driver had been involved in a one-

car accident the day before. Following the accident, police arrested the man – who

identified himself as a member of the Chicago police force – for drunk driving. They had

his disabled car towed to a garage some distance from the police station, where it sat

unguarded. Because the driver sustained injuries in the accident, he was taken to the

hospital for treatment.

       Early the next day, one of the local officers searched the car, including the trunk,

for the driver’s service revolver. The officer was under the impression that members of

the Chicago police force were required to carry their revolvers at all times. Because the

driver did not have a revolver when he was arrested, the officer believed the weapon

might be in the car and could pose a danger to the public if discovered by vandals.

3
  Justice Brennan poignantly recognized that the Cady Majority Opinion represented “a
serious departure from established Fourth Amendment principles.” Cady, 413 U.S. at
454 (Brennan, J., dissenting) (urging that a professed purpose to protect public safety
should not, absent exigent circumstances, “eliminate the necessity for compliance with
the warrant requirement”).



                             [J-112-2016] [MO: Todd, J.] - 5
During the search, the officer found various items covered with blood, including a

nightstick with the driver’s name stamped on it. Confronted with this information, the

driver authorized his attorney to disclose to police that there was a dead body lying on

his brother’s nearby farm.    The driver was subsequently convicted of first-degree

murder.

      The Cady Court relied on two of its prior “inventory search” cases to validate the

officer’s search for the revolver. See Cady, 413 U.S. at 445-47 (discussing Harris, 390

U.S. 234, and Cooper v. California, 386 U.S. 58 (1967)). In Harris, the high Court

deemed a warrantless automobile search reasonable under the “narrow circumstances”

presented therein because a police department regulation required officers to inventory

impounded vehicles for the purpose of safeguarding the owner’s property. Harris, 390

U.S. at 236. In Cooper, the driver of a car was arrested for selling heroin. The Court in

Cooper explained that a warrantless search of the vehicle one week later was justified

because the officers were required by state law to impound the car pending forfeiture

proceedings, and “it would be unreasonable to hold that the police, having to retain the

car in their custody [for many months,] had no right, even for their own protection, to

search it.” Cooper, 386 U.S. at 61-62. In each case, the Supreme Court emphasized

the importance of the police department regulation (Harris) and the state law (Cooper)

as essential safeguards for cabining officer discretion in the absence of probable cause

or exigent circumstances.

      Similarly, the Cady Court explained that certain factual considerations supported

the finding that the warrantless search was reasonable. First, because the disabled car

represented a nuisance on the highway (and because the driver was incapacitated) the




                             [J-112-2016] [MO: Todd, J.] - 6
police exercised custody or control over the car to remove it from the road for reasons

of safety. Cady, 413 U.S. at 442-43. Second, the search of the car’s trunk occurred

pursuant to “‘standard procedure in (that police) department,’ to protect the public from

the possibility that a revolver would fall into untrained or perhaps malicious hands.” Id.

at 443. The Court explained that “concern for the safety of the general public who might

be endangered if an intruder removed a revolver from the trunk of the vehicle” was a

justification “as immediate and constitutionally reasonable” as the justifications in Harris

and Cooper.     Id. at 447.    Critically, the record in Cady contained uncontradicted

testimony that the purpose of the officer’s search was to protect the public, a purpose

that was unassailable since, at the time of the search, the officer had no idea that a

murder, or any other crime, had been committed. Id.               Recognizing community

caretaking functions of police officers, the high Court stated “local police officers …

frequently 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 (emphasis

added).

       The high Court has cited Cady to justify subsequent warrantless inventory

searches, consistently emphasizing the importance of standardized procedures to

constrain police conduct where neither probable cause nor reasonable suspicion

operate to do so. See Colorado v. Bertine, 479 U.S. 367, 375 (1987) (upholding

warrantless inventory search in light of fact that officer discretion was        “exercised

according to standard criteria and on the basis of something other than suspicion of




                              [J-112-2016] [MO: Todd, J.] - 7
evidence of criminal activity”); Illinois v. Lafayette, 462 U.S. 640, 643 (1983) (explaining

that “a single familiar standard is essential to guide police officers, who have only limited

time and expertise to reflect on and balance the social and individual interests involved

in the specific circumstances they confront”); South Dakota v. Opperman, 428 U.S. 364

367-76 (1976) (deferring to “police caretaking procedures designed to secure and

protect vehicles and their contents within police custody”).

       By contrast, in the forty plus years since it decided Cady, the United States

Supreme Court has neither established a broad “community caretaker” exception to the

warrant requirement nor relied upon Cady to sanction warrantless police conduct not

cabined by standardized procedure.       While recognizing that seizing a citizen is, by

degrees of magnitude, more intrusive than the warrantless inventory search validated in

Cady, I nonetheless would adopt a “public servant” exception because Cady’s tenet that

police perform a caretaking function remains viable. Police officers can and do, in the

line of duty, effectuate seizures for the sole purpose of rendering assistance4 and

citizens of this Commonwealth have come to expect that police officers will not turn a

blind eye to motorists in distress.

       Although Cady recognized this caretaker function as one of the bases for

allowing an exception to the warrant requirement, it bears repeated emphasis that the

decision was based on the equal recognition that standard police procedure was




4
  For example, since 1929, Pennsylvania State Police have been required to memorize
a Call of Honor which, among other obligations, recognizes the “duty to be of service to
anyone who may be in danger or distress.” See Pennsylvania State Police Call of
Honor, https://www.psp.pa.gov/About%20Us/Pages/Call-of-Honor.aspx (last visited July
26, 2017).



                              [J-112-2016] [MO: Todd, J.] - 8
followed and that the caretaking function was totally divorced from any law enforcement

function.

       Given the magnitude of the government intrusion, Cady’s requirement that

community caretaking conduct by police must be “totally divorced” from any law

enforcement purpose is all the more crucial in recognizing the public servant exception

for seizures of motorists. Accordingly, I have serious concerns about a core aspect of

the test set forth by the Majority. To justify a warrantless seizure under our newly

created exception, the Majority requires:

             [T]he 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 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.

Majority Op. at 42-43.5 The Majority’s second prong ignores Cady’s clear mandate,

replacing the words “totally divorced” with the much weaker “independent from.” In my

view, any application of the public servant exception must be strictly limited to

circumstances in which the police action in question is, as in Cady, “totally divorced”

from investigating crime, and must be motivated solely by the police officer’s objectively

reasonable belief that someone is in need of assistance. See Cady, 413 U.S. at 441.

The integrity of the Fourth Amendment cannot countenance a lesser standard.

       The warrant requirement cannot be abrogated where the purported performance

of the community caretaking function is comingled with the investigation and detection

5
 Additionally, the Majority states, and I agree, that “once assistance has been provided
or the peril mitigated, further police action will be evaluated under traditional Fourth
Amendment jurisprudence.” Majority Op. at 43.



                             [J-112-2016] [MO: Todd, J.] - 9
of criminal activity. The “independent from” test adopted by the Majority allows the two

distinct functions to coexist such that seizures that were actually motivated by an

officer’s desire to investigate a crime may be validated so long as there were also

“specific, objective, and articulable facts” indicating that someone might need

assistance. See Majority Op. at 42-43. To allow any amount of criminal investigative

motivation into a warrantless detention of a motorist is a sword to the heart of the Fourth

Amendment, absent at least reasonable suspicion. I would hold that if an officer is

motivated to any degree by a desire to investigate crime, the individual seized must be

afforded his or her full panoply of Fourth Amendment rights.

         The Majority posits that the high Court’s “totally divorced” language in Cady “was

more of an observation … rather than a specific requirement.” Majority Op. at 39 n. 14.

This position is not supported by the facts of the case or the statements of the Cady

Court.     In no uncertain terms, the Cady Court relied on “community caretaking

functions” as the basis for the exception where such police conduct is “totally divorced

from the detection, investigation, or acquisition of evidence relating to the violation of a

criminal statute.” Cady, 413 U.S. at 441. Moreover, in Cady, the search was in fact

“totally divorced” from any investigative purpose.     As specifically noted by the high

Court, the officer in Cady was motivated by “concern for the safety of the general public

who might be endangered if an intruder removed a revolver from the trunk of the

vehicle” while simultaneously, the officer was “ignorant of the fact that a murder, or any

other crime, had been committed.” Id. at 447. Coupled with the finding that the officer

followed standard procedure, it was critical to the Cady Court’s holding that the officer’s

purpose had nothing to do with a desire to investigate a crime.




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       Citing language from sister state courts and Brigham City, Utah v. Stuart, 547

U.S. 398 (2006), the Majority posits that “a coinciding subjective law enforcement

concern by the officer will not negate the validity of an objectively reasonable caretaking

seizure.” Majority Op. at 40-42. In Brigham City, the United States Supreme Court

explained that “[a]n 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.” Brigham City, 547

U.S. at 404.6     I would argue, however, that Brigham City does not foreclose

consideration of an officer’s motives under a public servant caretaking exception. In

that case, the high Court held that police could enter a home without a warrant when

there were people inside “who are seriously injured or threatened with such injury.” Id.

at 403. In so doing, the Court rejected an argument that the officers’ conduct was

unreasonable because it was motivated more by the desire to make an arrest than by a

desire to “save lives and property,” stating that “the subjective motivations of the

individual officers … have no bearing on whether a particular seizure is ‘unreasonable’

under the Fourth Amendment.”        Id. (citing Graham v. Connor, 490 U.S. 386, 397

(1989)).

       It cannot be ignored that the subjective intent of the officers in Brigham City was

in fact irrelevant because the situation in Brigham City presented “an exigency or

emergency.” Id. Where exigent circumstances demand immediate police response, the

6
   It has been noted that the modern Supreme Court’s focus on the “reasonableness
clause” of the Fourth Amendment, see, e.g., United States v. Rabinowitz, 339 U.S. 56,
65 (1950), undermines the broad principle of the limitations on government power the
framers intended to declare, while minimizing the import of the warrant requirement. Id.
at 69 (Frankfurter, J. dissenting); Maclin, 35 Wm. & Mary L. Rev. at 228.



                             [J-112-2016] [MO: Todd, J.] - 11
emergency itself permits the exercise of police discretion because society does not

expect a police officer to turn a blind eye where conditions present an imminent risk of

serious harm. See id.; see also Michael R. Dimino, Sr., Police Paternalism: Community

Caretaking, Assistance Searches, and Fourth Amendment Reasonableness, 66 Wash.

& Lee L. Rev. 1485, 1534 (Fall 2009). With respect to the public servant exception,

however, a failure to consider subjective motivation permits courts to review police

conduct less strictly in circumstances where the potential for arbitrariness is the greatest

– namely, where there is neither an emergency nor probable cause to believe a crime

has been committed. Dimino, 66 Wash. & Lee L. Rev. at 1534.7

       Notably, in the instant matter, we are not faced with a mixed motive scenario.

The police officer’s testimony indicates that he was motivated to detain Ms. Livingstone

solely because he believed she might need assistance. Nothing in the record suggests

that his purpose was clouded by investigative aims.               The seizure here was

unreasonable because the officer’s subjective motivation to render assistance was not

substantiated by specific, objective factors. Absent any articulable indicia of distress, it



7
    The Supreme Court expressed its preference for an objective reasonableness
analysis in Whren v. United States, 517 U.S. 806, 813 (1996), as well. There, the Court
rejected an argument that a police officer’s detention of a motorist based on probable
cause to believe a traffic violation had occurred was nonetheless unreasonable where
the officer’s true motive was to investigate possible drug dealing activity. Id. at 811.
“Only an undiscerning reader would regard these cases as endorsing the principle that
ulterior motives can invalidate police conduct that is justifiable on the basis of
probable cause to believe that a violation of the law has occurred.” Id. (emphasis
added). Thus, Whren’s distaste for considering an officer’s subjective motivations was
tied to the existence of an independent legal justification (probable cause) for the
warrantless conduct. In the case of a public servant exception, no such independent
legal justification for the warrantless conduct exists, as probable cause and reasonable
suspicion are, by definition, lacking. Requiring that the officer lack a subjective intent to
investigate a crime constrains police action in the absence of traditional constraints.



                             [J-112-2016] [MO: Todd, J.] - 12
was objectively unreasonable for the officer to detain Ms. Livingstone, regardless of his

professed belief that she might need help.

       Thus, while the intent to act as a caretaker is not in itself sufficient to justify a

warrantless seizure, probing the subjective intent to so act is necessary. Moreover, for

that motivation to be “totally divorced” from a law enforcement purpose, it must stand

alone.8 Where an officer testifies that he was motivated to any degree by a desire to

investigate a possible criminal violation, our inquiry into the reasonableness of the

seizure is over because it was unconstitutional.       If, on the other hand, an officer

professes that his caretaking motives were pure,9 I would require that the police officer’s

belief that a person seized needed help must be objectively reasonable (as evidenced

by articulable facts), and that the seizure must be tailored in scope to address the

caretaking purpose.

       We are today injecting realism into our jurisprudence by recognizing that a police

officer in a vehicle with emergency lights ablaze effectuates a seizure of a motorist who,

under such circumstances, cannot be deemed to believe that he or she is free to leave.

By recognizing the significant constitutional dimension of this act by a police officer, in



8
 If police officers cannot conduct themselves purely for the purpose of rendering aid,
we should not adopt a public service exception to the warrant requirement. However,
as noted, experience teaches that police officers can and do render aid for the sole
purpose of assisting motorists in distress.
9
   In this regard, the defendant must be given the opportunity to test the police officer’s
motivation. By way of example, I highlight the facts of State v. Kurth, 813 N.W.2d 270
(Iowa 2012). There, the Iowa Supreme Court invalidated the seizure of a driver in a
parked vehicle upon observing the evidence that the police officer’s action of calling in
the license plate number on the defendant’s vehicle before effectuating the seizure was
“inconsistent with a public safety purpose but is certainly consistent with an investigative
purpose.” Id. at 279.



                             [J-112-2016] [MO: Todd, J.] - 13
my view, we must also strictly circumscribe the situations in which we countenance the

intrusion in the absence of the Fourth Amendment’s warrant requirement protections.

For the reasons previously stated, I would require that the police officer’s motivation to

provide aid and assistance – to “caretake” – must be pure and thus totally divorced from

the investigation or detection of a crime. Because, the Majority expressly allows the

comingling of caretaking and law enforcement functions to avoid the warrant

requirement, I dissent from that aspect of the Majority Opinion. I join the remainder of

the Majority Opinion.

      Justice Wecht joins this concurring and dissenting opinion.




                            [J-112-2016] [MO: Todd, J.] - 14
