Commonwealth v. Livingstone

Decision Date27 November 2017
Docket NumberNo. 11 WAP 2016,11 WAP 2016
Citation174 A.3d 609
Parties COMMONWEALTH of Pennsylvania, Appellee v. Victoria LIVINGSTONE, Appellant
CourtPennsylvania Supreme Court

Michael Eugene Burns, Esq., for Appellee.

Matthew Thomas Ness, Esq., Michael V. Worgul, Esq., The Worgul Law Firm, LLC, for Appellant.


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.



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 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 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 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.

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, 2015 WL 9282636 (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 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:

We recognize that flashing overhead lights, when used to

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