Friday, December 15, 2017

PLW: Pa. High Court Expands Fourth Amendment Protections for Motorists

Matthew T. Mangino
The Pennsylvania Law Weekly
December 14, 2017
Last month, the Pennsylvania Supreme Court made a significant decision with regard to whether the interaction between a motorist and a police officer, with overhead emergency lights activated, is a mere encounter or an investigative detention. More to the point, is the motorist free to leave or is he being detained by the police?
The question also encompasses the safety of the public as well as the police officers who encounter vehicles. By activating overhead emergency lights behind a stopped vehicle, the driver is alerted that there is a law enforcement officer behind him and passing motorists are alerted that a police officer and a stopped vehicle are alongside the road.
The U.S. Supreme Court has consistently held that police officers do not violate the Fourth Amendment by merely approaching an individual in a public place and asking the individual questions or requesting identification.
In Terry v. Ohio, 392 U.S. 1 (1968), the U.S. Supreme Court held that the Fourth Amendment prohibition against unreasonable search and seizure is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest. The Terrycourt created a new degree of suspicion, more than a hunch but less than probable cause. After Terry, if a police officer has a “reasonable suspicion” that a suspect has committed, is committing, or is about to commit a crime or may be armed—the officer can detain, question and frisk the suspect.
The Pennsylvania Supreme Court recently took on the issue of an investigative detention involving a motor vehicle in Commonwealth v. Livingstone, No. 11 WAP 2016. The appellant, Victoria Livingstone, sought the suppression of evidence gathered during an interaction she had with a Pennsylvania state trooper along a busy interstate that led to her conviction of a DUI (driving under the influence).
Livingstone was stopped on the side of the road at approximately 9:30 p.m. on June 14, 2013, when a trooper observed her car and pulled alongside to see if she needed assistance. When the trooper attempted to engage Livingstone, she returned a “100-mile stare” and exhibited slurred speech and glassy eyes, wrote Ben Seal of The Legal Intelligencer.
The trooper moved his vehicle to the front of Livingstone’s and asked her a few questions. The trooper observed that she slurred her speech, cried, was confused, repeated herself and was unable to follow directions.
After failing a field sobriety test, the trooper placed Livingstone under arrest.
Livingstone’s motion to suppress alleged that the interaction between her and the trooper was an investigative detention without reasonable suspicion or probable cause. Once the trooper activated his car’s emergency lights he began an investigative detention.
The trial court denied her motion finding the interaction was a “mere encounter.” She was found guilty of all charges and appealed. The Superior Court agreed with the trial court and an appeal to the Pennsylvania Supreme Court followed.
In distinguishing a mere encounter from an investigative detention a trial court dealing with a motion to suppress must consider all the circumstances surrounding the encounter between the police and the individual. The Supreme Court crafted a reasonable person standard in Commonwealth v. Lewis, 636 A.2d 619 (1994). Would a reasonable person feel as though she could decline an officer’s request?
A mere encounter can be any formal or informal interaction between an officer and a person. The hallmark of a mere encounter is that it carries no official compulsion to stop or respond.
In contrast, an investigative detention carries an official compulsion to stop and respond, but the detention is temporary, unless it results in the formation of probable cause for arrest, and does not possess the coercive conditions consistent with a formal arrest. Since an investigative stop has elements of official compulsion it requires reasonable suspicion of unlawful activity.
In further contrast, a custodial detention occurs when the nature, duration and conditions of an investigative detention become so coercive as to be, practically speaking, the functional equivalent of an arrest.
A look back at the development of the law in this area is instructive and provides a glimpse into the significance of the Livingstone decision.
In Commonwealth v. Johonoson, 844 2.d 556 (2004), a state trooper observed a slow-moving vehicle traveling with flashing hazard lights on a rural road at 3 a.m. Without using his turn signal, the driver pulled his vehicle off to the side the of road, at which point the officer followed behind. The trooper activated his overhead emergency lights, and pulled behind the vehicle. When the trooper approached the driver he immediately noticed signs of intoxication, and subsequently arrested the driver for DUI.
Johonoson filed a motion to suppress the evidence of his intoxication, arguing that the activation of the officer’s overhead emergency lights would have made a reasonable person in his position believe he was not free to leave and, therefore, he was subject to an investigatory detention.
The trial court denied the motion and the Superior Court affirmed the trial court’s decision reasoning, “By pulling over to the side of the road at 3 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.”
The Superior Court reached a similar conclusion in Commonwealth v. Conte, 931 A.2d 690 (2007). An officer received a dispatch regarding a disabled vehicle on the shoulder of a road. When the officer arrived at the scene, he pulled behind the vehicle and activated his overhead emergency lights to alert passing vehicles of his presence.
The officer approached the driver who had already exited the vehicle, and asked him if he needed help. The driver told the officer he had a flat tire. After noticing signs of intoxication while speaking with the driver, the officer decided to administer field sobriety tests, the driver failed and submitted to a blood test resulting in a blood alcohol reading of .23 percent.
The driver was arrested and convicted. An appeal followed.
The Superior Court affirmed the trial court’s denial of Conte’s motion to suppress. Relying on the rationale in Johonoson, the court found that “the evidence introduced at the suppression hearing shows that a reasonable person in Conte’s position would have understood the police officer’s arrival as an act of official assistance, and not as the start of an investigative detention.”
In Commonwealth v. Kendall, 976 A.2d 503 (2009), Gregory Kendall appealed his Franklin County conviction for driving under the influence. On Sept. 17, 2007, two state troopers followed Kendall’s car for approximately two or three minutes at a distance of 50 to 100 feet, the driver activated his turn signal and pulled off to the shoulder of the road. The road had a narrow shoulder and the driver pulled the car partially onto a property that bordered the road.
The troopers pulled behind Kendall’s vehicle. After running the license plate one of the troopers activated the overhead lights and exited the patrol car and approached the vehicle. The trooper asked Kendall why he suddenly pulled over, and Kendall replied that it was to let the patrol car pass.
The trooper smelled alcohol and Kendall failed a field sobriety test. A blood test revealed Kendall had a blood alcohol content of .14 percent.
Kendall filed a motion to suppress alleging the stop was an investigative detention and not supported by reasonable suspicion. The Superior Court did not agree and ruled that the level of interaction between Kendall and the troopers began as a mere encounter and therefore no reasonable suspicion was required.
Finally, in 2009, the Pennsylvania Superior Court, en banc, decided Commonwealth v. Au, 986 A.2d 864 (2009). A police officer on routine patrol after midnight observed an automobile parked in the lot of a local business, which had closed several hours earlier.
The officer decided to see if the vehicle’s occupants needed assistance as it was unusual to see a car in the lot at such a late hour. Without activating his emergency lights, the officer parked his vehicle so that his headlights illuminated the passenger side of the vehicle. The car was filled with young people and the officer asked for identification.
The court found that an officer’s request for identification from a group of teenagers in a vehicle constituted an investigative detention unsupported by reasonable suspicion.
The Pennsylvania Supreme Court reversed the Au majority’s holding (Commonwealth v. Au, 42 A.3d 1002 (2012)), and adopted the analysis of the U.S. Supreme Court in Hiibel v. Sixth Judicial District Court, 542 U.S.177(2004), in which the high court held that statutes requiring suspects to disclose their names during police investigations did not violate the Fourth Amendment. In Au the Pennsylvania Supreme Court held that “a request for identification is not to be regarded as escalatory in terms of the coercive aspects of a police-citizen encounter.”
What distinguished Au from Livingstone is that the officer in Au did not activate his overhead emergency lights. Had he activated his emergency lights the stop may have been an investigative detention regardless of the request of identification.
Contrary to decisions reviewed above, the Pennsylvania Supreme Court has made it clear in Livingstone that the activation of a police car’s overhead emergency lights is enough to initiate an investigative detention. A motorist who drives away from a police car with lights illuminated may be convicted of fleeing and alluding, 75 Pa.C.S.A. 3733.
“The fact that motorists risk being charged with violations of the motor vehicle code … supports our conclusion that a reasonable person in the appellant’s shoes would not have felt free to leave,”
Therefore, Livingstone was seized and subjected to an investigative detention without any degree of suspicion of criminal activity.
Will this decision put motorists and police officers in danger or jeopardize viable prosecutions? If activating emergency lights initiates an investigative detention, will police officers avoid using their overhead lights when checking on a motorist? The safety of motorists on the roadway and the police officer would be compromised.
On the other hand, activating overhead lights without reasonable suspicion may make evidence of criminal activity seized by police subject to suppression.
In light of Livingstone, Pennsylvania appellate courts will no doubt be asked to review the parameters of reasonable suspicion. Soon sitting along the highway in a stopped vehicle may be enough to trigger reasonable suspicion.
The Pennsylvania Supreme Court also used the facts in Livingstone to examine the public servant “exception” to the requirement for a warrant pursuant to the community caretaker doctrine. A more thorough review of those 23 pages of legal analysis will be left for another column.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book “The Executioner’s Toll,” 2010 was released by McFarland & Company. You can reach him at and follow him on Twitter @MatthewTMangino).
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Thursday, December 14, 2017

DA encourages support for PA Clean Slate Act

Allegheny County District Attorney Steve Zappela wrote recently in the Pittsburgh Post-Gazette: Last year, the state Legislature passed a law that offers the chance to seal old, minor criminal records for people who stay out of trouble. While that was a good start to help people rebuild their lives and reputations, there is a next step that should be taken.
The law now requires Pennsylvanians who stay out of trouble for 10 years to go through a time-consuming and cumbersome process to seal their records, a process that includes a court hearing and the payment of a filing fee.
The General Assembly can ease that burden by passing the Clean Slate Act. The act would make the sealing of these records automatic after 10 years for nonviolent offenders who stay out of trouble. The courts and police agencies would work together to accurately and automatically seal these criminal records within two months of an offender’s eligibility. Those who qualify would simply be notified by mail that their records have been sealed. They would not have to go through a hearing, pay a fee or hire a lawyer.
Criminal background checks are necessary and serve an important function. Employers, landlords and schools should know if there is something in a candidate’s past that makes that person a danger or liability. The Clean Slate Act would not inhibit background checks. What it would do is allow nonviolent offenders who remain crime-free for a decade to apply for housing, jobs and schools, knowing that a long-ago minor crime will not stand in the way of their applications being considered.
To read more CLICK HERE

Wednesday, December 13, 2017

FBI agents involved in Russia probe tweet Trump is an 'idiot'

Two FBI agents assigned to the investigation into alleged collusion between President Trump’s campaign and Russia exchanged text messages referring to the future president as an “idiot,” according to copies of messages turned over to Congress by the Justice Department, reported Politico. Special Counsel Robert Mueller removed agent Peter Strzok from the probe “immediately” after learning of the texts in late July, the department said. The other agent, Lisa Page, had ended her assignment to Mueller’s office. After Page commented on a Bernie Sanders bumper sticker, Strzok replied, “He’s an idiot like Trump. Figure they cancel each other out.”
The messages, which turned up during a Justice Department inspector general investigation into political influence on investigative decisions during the campaign, are fueling Republican calls for a second special counsel to investigate Mueller’s operation. 
To read more CLICK HERE

Tuesday, December 12, 2017

Doug Jones is projected to win Senate seat in Alabama over maligned Roy Moore

The Associated Press projected that Doug Jones, a former U.S. attorney, defeated Roy Moore, a controversial former judge, in a major upset. Moore faced allegations that, decades earlier, he had pursued romantic relationships with girls in their teens when he was in his 30s.

Jones’s victory in the special election is a seismic defeat for the GOP, President Trump and Trump’s former chief strategist, Stephen K. Bannon. The result will narrow the Republican majority in the Senate to 51 to 49 — and will place that majority in greater peril during next year’s midterm elections.

Monday, December 11, 2017

GOP lawmakers excoriate FBI and special counsel

For five hours last week, Republican lawmakers delivered a reckless and sustained attack on the FBI and the special counsel, reported the Washington Post. They amplified President Trump’s claim that the FBI’s “reputation is in Tatters — worst in History” and that Robert S. Mueller III’s Russia probe, which has already secured guilty pleas from two Trump campaign officials and the indictments of two more, is part of a system that is “rigged,” “phony,” “dishonest” and using a “double standard.”
Shamefully, Republicans on the House Judiciary Committee launched an all-out assault on the special counsel and the FBI — choosing to protect Trump at the cost of Americans’ faith in the justice system and the rule of law.
Rep. Bob Goodlatte (R-Va.), the chairman, echoed Trump’s “tatters” claim and told FBI Director Christopher A. Wray that Mueller’s probe and the Clinton email probe have been tainted by “bias.”
Rep. Steve Chabot (R-Ohio) repeatedly charged that the FBI and Mueller have a “shocking” anti-Trump bias.
Rep. Jim Jordan (R-Ohio) said he has a “hunch” that “pro-Clinton, anti-Trump bias” at the FBI was behind a secret “warrant to spy on Americans associated with the Trump campaign.”
Rep. Matt Gaetz (R-Fla.) called former FBI director James B. Comey an “egomaniac rogue” and speculated that the FBI paid for the “dossier” on Trump’s activities in Russia.
Rep. Ron DeSantis (R-Fla.) speculated that anti-Trump bias led the FBI to conclude that Russia interfered in the U.S. election, and he threatened Wray: “I think you’re walking into a contempt of Congress.”
This is calumny. Mueller is a longtime Republican who was appointed FBI director by George W. Bush. He was named special counsel by Rod J. Rosenstein, also a Republican, who was appointed by Trump himself to be deputy attorney general. Comey, a Republican who served in Bush’s Justice Department, made political contributions to John McCain, Mitt Romney and other Republicans. Wray, a Republican who also gave to GOP candidates, was appointed by Trump.
To read more CLICK HERE

Sunday, December 10, 2017

Racist court decision may be key to Moore victory in Alabama

If Roy Moore narrowly defeats Doug Jones in this week’s Senate race, he may have an obscure 1903 Supreme Court case to thank, reported Newsweek.
The case, Giles v. Harris , upheld Alabama’s successful campaign to prevent African Americans from casting ballots despite the constitutional guarantee of the right for black people to vote.
Its ramifications can be felt to this day: about 15 percent of otherwise qualified African American residents of Alabama have been barred from voting in recent elections.
In a state where 90 percent of eligible blacks vote Democratic, that can make the difference in this week’s closely watched Senate election.
Alabama’s unequal approach to voting can be traced to its 1901 constitution, drawn up to prevent black citizens from voting.
The president of the convention that drafted the constitution, John B. Knox, declared at the beginning of the meeting: “And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State.”
To read more CLICK HERE

Saturday, December 9, 2017

GateHouse: Waning respect for the rule of law

Matthew T. Mangino
GateHouse Media
December 7, 2017
Following a recent terrorist attack in Manhattan that killed eight and injured 12 President Donald Trump attacked the criminal justice system. He suggested that the criminal justice system was partially at fault for terrorist acts.
“We need quick justice, and we need strong justice -- much quicker and much stronger than we have right now. Because what we have right now is a joke, and it’s a laughingstock,” said Trump.
Last weekend President Trump tweeted, “After years of [F.B.I. Director] Comey, with the phony and dishonest Clinton investigation (and more), running the FBI, its reputation is in Tatters - worst in History! . . .”
Not to mention the president’s recent attacks against Special Counsel Robert Mueller and his team of investigators as “very bad and conflicted people” and his characterization of the Russia probe as a “witch hunt.”
Those comments from the president of the United States should alarm anyone who believes in the rule of law.
Bob Bauer, White House Counsel to President Obama, wrote recently on LawFare, “the president is successfully bringing the legal process into the discredited conspiratorial ranks of the ‘deep state.’ He is specifically stirring up suspicion of Robert Mueller, but his broadsides have a far wider focus. He has upbraided the whole system--DOJ, the FBI and the courts.”
The foundation of American democracy rests on the rule of law. Freedom endures with the notion that all men and women are on equal footing before the courts, and that our government of checks and balances protects us from corrupt institutions.
The faith that we invest in our leaders is always subject to legitimate scrutiny. However, baseless attacks on our institutions shake our faith in democracy.
In 2016, Gallup released a poll that showed only 23 percent of Americans have either “a great deal” or “quite a lot” of confidence in the criminal justice system. Such lack of confidence is unfortunate and concerning. The poll predates the current attacks on justice-related institutions.
Jason Brennan a professor at Georgetown University wrote in Time, ”[M]ost voters have no incentive to be well-informed about politics, or to correct their misinformed opinions. They have no incentive to think rationally about politics or to process information in a reasonable way. They have every incentive to indulge their biases and prejudices.”
The recipe of demagogic attacks on political institutions, and failure of voters to correct misinformation, is dangerous. Don’t take it from me. This week, former President Barack Obama warned against staying complacent in the face of rising nativism--citing the rise of Hitler as an example of what can happen if democracy is not defended--reports Crain’s Chicago Business.
“We have to tend to this garden of democracy or else things could fall apart quickly,” Obama told an audience at the Economic Club of Chicago. “That’s what happened in Germany in the 1930s, which despite the democracy of the Weimar Republic and centuries of high-level cultural and scientific achievements, Adolf Hitler rose to dominate.”
Obama continued, “Sixty million people died...So, you’ve got to pay attention. And vote.”
Whether it was attacking U.S. District Judge Gonzalo Curiel for his ethnicity or the “so-called judges’ that overruled his travel ban or his comments after the sanctuary cities decision, “This case is yet one more example of egregious overreach by a single, unelected district judge,” President Trump has displayed little respect for the rule of law.
In 1947, U.S. Supreme Court Justice Felix Frankfurter wrote, “There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.”
Judges, prosecutors and investigators should be free from pressure imposed by a political party, a powerful person, a private interest, or popular opinion.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.
To visit the column CLICK HERE