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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