                            [J-12-2018] [MO: Donohue, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                 :   No. 40 MAP 2017
                                               :
                      Appellee                 :   Appeal from the Order of the Superior
                                               :   Court at No. 296 MDA 2016 dated
                                               :   December 05, 2016, Reconsideration
               v.                              :   denied February 9, 2017, Affirming the
                                               :   Judgment of Sentence of the Court of
                                               :   Common Pleas of Cumberland
 ASHLEY LAUREN WILMER,                         :   County, Criminal Division, at No. CP-
                                               :   21-CR-0003487-2013, dated February
                      Appellant                :   16, 2016.
                                               :
                                               :   ARGUED: May 15, 2018


                                  DISSENTING OPINION


JUSTICE MUNDY                                           DECIDED: September 21, 2018
       In Commonwealth v. Livingstone, 174 A.3d 609 (Pa. 2017), this Court held that

“[o]nce assistance [pursuant to the emergency aid exception] has been provided or the

peril mitigated, further police action will be evaluated under traditional Fourth Amendment

jurisprudence[.]” Id. at 627. The Majority foregoes the Livingstone evaluation of further

police action under Fourth Amendment jurisprudence and substitutes a requirement that

“once the emergency that permitted the Troopers’ initial entry ceased, their right of entry

. . . under the emergency aid exception also ceased.” Majority Op. at 20. Therefore,

according to the Majority, the Troopers “must leave the residence unless some other

exception to the warrant requirement permits their continued presence.”          Id. at 13

(emphasis in original).

       In so holding, the Majority has created a new requirement that the moment the

emergency is abated, any police presence must independently satisfy a separate Fourth
Amendment exception, or they must leave the premises. The Majority invokes this rule

even where the police presence is a continuation of an entry pursuant to the emergency

aid exception in order to complete an incident report for property damage, and not for

investigatory purposes. Because I cannot agree with the Majority’s alteration of this

Court’s holding in Livingstone, I dissent.

       In the instant matter, the Troopers’ exit from the sorority house to obtain their

incident report form, and subsequent reentry to complete it, was deemed a lawful reentry

by the trial court, and ultimately an unlawful reentry by the Majority. However, I agree

with the Superior Court that these were not two separate warrantless entries, but rather

it was one continuous episode under the emergency aid exception of the community

caretaking doctrine. Critical to this conclusion is the fact that the officers were not entering

for investigative purposes but only to conclude the lawful warrantless entry, which

resulted in damaged property. The cases cited by the Majority to support the termination

of a lawful police presence all hold that the end of the presence related to the emergency

aid, and the start of a separate investigation into criminal activity, is the point at which the

officers are no longer lawfully present. See Mincey v. Arizona, 437 U.S. 385, 393 (1978)

(holding the entry by the homicides detectives to conduct “a four-day search that included

opening dresser drawers and ripping up carpets can hardly be rationalized in terms of the

legitimate concerns that justify an emergency search[]”); United States v. Goldenstein,

456 F.2d 1006, 1010 (8th Cir. 1972) (holding that when the officer was satisfied the

suspect he was pursuing was not in the room he had entered without a warrant he could

not conduct a search of a closed suitcase or seize the contents within the suitcase

because they were not in plain sight); State v. Neighbors, 328 P.3d 1081,1093 (Kan.

2014), (holding that following a lawful warrantless entry to assist an unresponsive male,




                             [J-12-2018] [MO: Donohue, J.] - 2
“[t]he emergency aid exception could not be invoked as a basis for validating the trespass

investigation[]”).

       It is my view that the Majority’s focus on the separate entries into the sorority house

is misplaced. In each of the aforementioned cases relied on by the Majority, officers may

have entered and exited the premises numerous times in order to complete their duty

pursuant to the emergency aid exception, but the fact of the each ingress and egress

from the property has never been the focus of the analysis. The focus and analysis in

those cases concern when the officers cease providing emergency aid and shift to

investigating a crime. Conversely, the Majority’s analysis here does not focus on the

troopers’ conduct in attempting to complete an incident report related to their lawful entry,

nor analyze whether this was the beginning of a separate investigation for criminal activity

as is the required threshold question. Instead, the Majority’s focus is limited to the two

separate entries, but creates a rule that will apply to circumstances with only one entry

followed by a continued police presence. The Majority opinion seems to suggest that had

the Troopers’ not left at the point in time that they determined the visibly intoxicated young

man on the roof had fallen to the ground, any further presence in the sorority house would

also have been unlawful. See Majority Op. at 13, 20. This rule precludes any follow up

related to the circumstances of the entry to aid in an emergency. As written, this rule

allows police officers to lawfully break windows or doors in furtherance of emergency aid,

but requires them to immediately leave once the emergency has ended without properly

documenting the damage and ascertaining the owner of the property.

       Further, contrary to the Majority’s assertion, I do not suggest that a “gathering

information to complete paperwork” exception to the Fourth Amendment exists. Majority

Op. at 21, n. 16. Rather, I believe the troopers’ presence to complete an incident report

directly related to the property damage caused is encompassed in the entry pursuant to




                             [J-12-2018] [MO: Donohue, J.] - 3
the emergency aid exception. To require an immediate exit preventing all matters of

follow up oversimplifies real life factual scenarios.      However, I recognize that if the

troopers were reentering to engage in an investigation, they would be required to satisfy

a separate Fourth Amendment exception.

       Accordingly, I would affirm based on the well-reasoned analysis of the Superior

Court. The Troopers were lawfully present pursuant to the emergency aid exception, and

“the police may seize any evidence that is in plain view during the course of their

legitimate emergency activities.” Mincey, 437 U.S. at 393 (citing Michigan v. Tyler, 436

U.S. 499, 509-510 (1978); Coolidge v. New Hampshire, 403 U.S. 443, 465-466 (1971)

(parallel citations omitted)).




                                 [J-12-2018] [MO: Donohue, J.] - 4
