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 www.mattmangino.com and follow him
on Twitter @MatthewTMangino).
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