and he pulled up behind this particular car in which mcdonnell and his wife were occupants and turned on his articulate what the assistance was he you said that perhaps there was a situation where there was a medical problem or or a domestic you opined that this would be used however there was no evidence of that think we straighten that out in the lumen case you would agree a consensual encounter is not a seizure when you just mentioned is not a seizure but that's true except i don't consider this to be a consensual encounter when it's only the consent of one of the people or it will maybe we're not in much disagreement here but a community caretaking encounter is a seizure right is a seizure i don't believe it is i think that that's outside that they consider that to be outside the realm reasonable for an officer to investigate a car parked on the side of the highway be there because the passengers might might be in need of some assistance i don't find that reasonable any more than if you pulled the car over in traffic for the same reason if know if you were driving down the road minding your own business in your car and their officer decides that he thinks you might have a medical problem or because you have a passenger maybe there's a domestic which is what this  officer i don't believe he has the authority to pull you over any more than i think he has a right to come up behind you and are you focusing on the the subject of thoughts of the officer rather than the objective one as to whether or not somebody it's reasonable to assume that if someone is sitting on the side of the road that they may have assistance you're saying that officers now categorically can't go out and check are you in trouble as your to do you have a flat tire is your current working they can't go to the side of the road now and that is not a community care taken function here there was absolutely no indication that anybody needed anything and it's  not that easy for one of these officers to articulate this after the fact that i decided i go to bed that's why my question is is it an objective analysis car side of the street stopped reasonable to assume something might be wrong or analysis subjective namely did the officer think there might be criminal intent and it's a pretext to go over there and same something might be wrong with your car your sex object it's the latter because here what the officer if the officer thought that there was some real reason to get the motorist needed help that's what he would have talked about that's he would have walked up to the car you know and hear what he does is he walks up and he uses flash car to investigate here what the officer does he he says that he's concerned about maybe medical maybe domestic is that domestic battery that's a crime  is it is rather clear from what he does rather than so much what he says that what he's looking for is he's investigating criminal conduct well i i'm having trouble obvious trouble if the community community care taking it's it is a seizure but it's allowed based on a balancing of the citizen's private interests and against the public interest and having police perform their safety functions would you agree with that yes or and doesn't clearly the public have an interest in having police officers check on motorists on the side of the highway i don't know that that's  true i don't think that they check everybody's parked on the side of the highway any more than they check everybody parked in parking lots or anyplace else they selectively do this one when they have some other motivation but just just for them to randomly check that's not what really happens in the real world they will stop somebody or they will pull up behind somebody because they have a suspicion of some crime this is an area on the facts where there are a lot of solutions a lot of drinking and driving off to admitted that was the case interesting only what he says is not was theory whose knowledge of that that wasn't even didn't even read his mind when he made this into a legit go after this one but doesn't the safety concerns invoke more than even the person on the side of the highway but also the cars that are going to be traveling on that same highway with a car parked on the shoulder you refer to use the lights or are you referring to the use of the oscillating lice no i'm i'm just the stop i'm just referring about the community caretaking function of an officer having the right to investigate anytime somebody is on the side of the highway with the curse that is in the doesn't the public safety ramifications go further than they are then with respect to that one car having a flat tire a problem with their engine doesn't the safety concerns also go to other people travelling on that i way with the car stopped on the shoulder i don't see that as a safety concern is involved here at all i see what a person does with this officer does is he the rest somebody without any probable cause without any reasonable suspicion he just pulls up and rests the guy and there's absolutely no reason for him to have done that now it's awfully easy for him after the fact to say well this was a i was community care taking because i was concerned that there might have been medical problem or something when there's course no evidence of that there was no evidence the car had a problem there is no evidence of anything being wrong it's very similar to marshall in chicago the recent case of the fifth the first appellate where they did the same time the policeman up there did the same thing they saw a marshal he was sitting in his car off the side of the road not doing anything they mistakenly believe that he was illegally parked actually he wasn't illegally parked and it was a civil matter anyway under the city ordinances in chicago but nevertheless they came up behind community care taking function is a seizure no one would question that turning on the mars lights that that person would feel that he has been seized but the balancing is in the question that i have for you is basically if you we look at the objective reasons first stopping or do we look at the subjective reasons of the office or what you look at in the question i think you have to answer at least for me is isn't it always reasonable for an officer to check object of reasonable to think that somebody needs assistance mission awfully easy for that officer to say later at the courthouse when use i'm sitting on the trial that well i really stopped this guy really pulled up behind him because i was do that because they want to text message or use telephones are not supposed to do that while they're driving and they'll pull over to make calls and things like that here this guy said i pulled over because friends of mine were to gas station i'm just waiting for him to catch up i've done that and we look at the fact the factual situation here is whether this officer did something objective really reasonable i think the facts were this was at night it was a four lane so i guess i got i way shoulder was narrow facts and say this is subjectively reasonable no matter what the officer and i think you can i absolutely think you can if you look at what willie happened here if that officer parks behind just just man's car and he's concerned about his way there's no problem cause there's no reasonable suspicion think we're we're we're having difficulty and both based on just to stir myers question and my own is the school idea of objective versus subjective if the community care taking function is based on an object i don't care if the officer says on the stand this car was parked on the side of the road i thought he had drugs in the car so i put on my mars light and i stopped and i thought i had absolutely no belief that he had a flat no belief that his engine i thought he could have started to occur up and rode away i put him on i stopped the car because i thought he had drugs in the car now pretty pretext all right yesterday but if community care taking is something that's based on objectivity rather than subjectivity it matters not what the officer thinks it only matters whether or not there is a reasonable care taking function to go behind that car but on the mars late because community care taken is a sort of seizures of doesn't matter because he has the community care taken function there is an objective belief that it is reasonable to check out the situation that obvious that what he said he was why he was doing things isn't why he was really doing it or even the trial judge now this is the guy that said hey if this guy to driven off if the defender soon as i got out of my squad car with the lights would go on and i walked up behind  suspicion to stop somebody send his guy fled and he shouldn't have here's the officer said that oh no he would not have pursued this defendant i think that kills you his credibility as a wall and if you look at defendant's right not to be arrested for no reason at all the court has equated this isn't a rose and what happens here is for no reason at all this defendant gets arrested if it if the if the stop they can stop every car any time they want to all they got to do say i saw you driving along i thought there was a domestic problem in your car because there were two people in the car well there's no difference between pulling you over for that reason or pulling up behind you when you're already stopped i the same thing they use the same technique defendants license was suspended based on their his refusal to take the breathalyzer yes this this particular person was suspended and then the court rescinded it and that's the limited on the grounds for recision a very limited correct this was the basis on on the fourth amendment it was based on the fact of the stop was illegal i'm sure that that's what it was based on the record the do things on matters collateral to these the actual thing that's before you if they're directly affected if it was something that was subsequent in another order and so that that looks like why they pull it or did that interestingly when i fall lead to people here in new granite state when i filed a brief they said well hey wait a minute you can argue about this recession because you didn't we didn't put anything in your position for leave to appeal about that particular issue i thought well that's interesting because if it's ok for the state or union pillock or one or six fifteen even though they didn't fall knows what people are mentioning it ought to really be ok for me to do the same thing here under the sea rule you still have the same forty so my think of the  a summary suspension you haven't provided any materials would which indicate that the defendant sought review of his a statutory suspension before the secretary of state here will happen was that rescission was rescinded videotape that the officer of the court review at the time and it was my understanding they did it all the same time it's not crystal clear from the record i grant you i believe that it was a sta duty to preserve the records since they were the appellant's in the appellate court and so if the record is you sufficient i think that that falls on the state but more more importantly on that point the recession question is it is a totally separate question and it is a civil matter a nurse different civil rules it was what any materials would indicate indicate that the defendant sought review of his statutory suspension before the secretary of state that never happened or that the secretary of state has issued any orders to respond to no and do you provide any authority to indicate that the secretary of state is required to act honest that's a tory summary suspension based on a suppression order in a criminal proceeding while i'm not sure how the secretary of state itself responds to that but when they get a rescission order from the trial judge they might my question is if you provided us any authority and i don't have a specific age to refer you to no ok all right thank you thank you differentiated between consensual encounters between police and citizens and what this quarter's characterized as community care taking the community care taking exception to the warrant requirement of community care taking exception when applied by a court pre supposes or holds that a seizure has in fact occurred but that it is a reasonable seizure under the circumstances when police officers are carrying out some of their many non law enforcement or criminal investigation related duties the other question that the court was concerned with that i'd like to address to that in some length is whether we're dealing here with an objective test or a subjective test the authority indicates that when this court reviews fourth amendment questions of this nature it is to apply an objective test that is in this case was it objectively reasonable for trooper braun worth to believe under the circumstances that a parked car on a darkened busy four lane highway at night was perhaps in need of medical assistance directions or some any other kind of assistance that he thought might be required now subjectively my able opponent has taken issue with some of the credibility problems as he sees it with trooper brown worth's testimony i think he overstates those problems somewhat but be that as it may under the objective standard that this court must apply he was entirely justified and his actions were reasonable when he pulled up behind the defendant's vehicle with his flashing lights in order to ascertain whether anybody needed help as justice burke indicated the side of a busy four lane highway it's not a normal place to park a car as a non law enforcement officer driving down the road my first thought upon seeing one of these vehicles as well as i wonder what's wrong certainly police officers who are trained to offer assistance in any this variety of in a variety of scenarios that may arise on our highways are objective we authorize and it's certainly reasonable for them to inquire whether the driver might need help is lost is having a heart attack as trooper brown worth testified he had encountered on one occasion so the objective standard here certainly dictates in favor of finding that seizure was reasonable under the circumstances in addition to finding that it was reasonable under the circumstances our appellate court has suggested that the court should also weigh when reviewing these community caretaking cases whether the intrusion was outweighed by the public interest and certainly in this case the minimal intrusion into the defendant's privacy was certainly outweighed by the social benefits that we as a society attain when police police officers do their jobs right on the highways and make sure that people aren't in trouble trooper brown wirth approached the vehicle in this case and the defendant rolled his window down and he simply asked is everything ok upon receiving that response authorities strongly suggest that wanted it officer smells alcohol in the driver's breath he has reasonable suspicion under terry versus ohio to prolong that stop and investigate further because people who are driving cars who smell like alcohol call may very well be it's likely that they're driving drunk at that point trooper bryan worth according to protocol returned to his car checked the identifications of the defendant everything checked out he returned to the vehicle and asked the defendant to perform field sobriety tests which the defendant failed and he's run videotape the question whether he passed the sobriety field sobriety tests were litigated somewhat in the trial court but the trial court's final judgment on the suppression motion did not until any  review or argument with respect to the effect were the result of those field sobriety tests the trial court's judgment on the suppression motion related solely to trooper brown worth's initial pull up behind the vehicle with his lights much of this court's decision in people versus where and he has seized upon some of the language in that case to support his position that at the rescission hearing trial courts have the ability or obligation to determine whether the initial seizure of a person in a vehicle is acceptable under the fourth amendment in in deciding whether to rescind the statute for summary suspension and this is part two of our grief we submit that the four considerations in the summary suspension decision called the rescission statute are the first one is whether the defendant has been arrested the second one as applicable to this case the second one is whether there are reasonable grounds to consideration in prong two of the rescission hearing statute and they've been and apart from looking at whether there are reasonable grounds to believe the drivers intoxicated the appellate court has and grafted this other consideration on here that supported not in the text or anywhere else for that matter that the arrest or stop the stop of the vehicle that preceded the reasonable grounds to believe that there was intoxication was lawful under the fourth amendment our general assembly over the last twenty to twenty five years has consistently moved in a direction away from requiring proof of a lawful arrest or a lawful stop at the rescission hearing and in my brief i've detailed a number of cases on many pages about how the united states supreme court has declined in numerous civil cases to extend the exclusionary rule and just to back up to people versus where is i want to i want to make i'm clear on the where decision here in people versus where this court suggested that the question of probable cause at the suppression hearing can overlap with the question of reasonable grounds for belief of intoxication at the rescission hearing and that that is very well good and true but it doesn't work as well in this case it only back up it works if the discreet question of the suppression hearing is whether the officer had probable cause to believe the guy was drinking that overlaps very nicely with the very same question at the rescission hearing whether the officer has reasonable grounds to believe the guy was drinking here however we have a bit more tension because the rescission order was premised not on whether there were reasonable grounds to believe the guy was drinking but on the n s c didn't question litigated the suppression hearing whether or not the initial seizure of the death and it was appropriate that has nothing to do with whether there are reasonable grounds for  the rescission order because it was dependent upon its judgment reversing the fourth amendment issue and this court should similarly follow the appellate court's reasoning on that point it can simply vacate under rule six fifteen  however and i know i'm in a position here of asking the court to exercise its supervisory authority but this is a recurring issue in the appellate court and the appellate court is under the misapprehension that it can consider whether the antecedent or stop was appropriate points the people request that the court affirm the judgment of the appellate court for the grounds discussed here today and for those detailed in our brief and vacate the decision on the rescission question and hopefully offer some guidance on whether that if if this court were to adopt a position that if if the officer can conjure objectively reasonable fact if you can voice some kind of objectively reasonable reason here the what it does is it opens a floodgate of arguments for stopping all we're going to see in the future is if this is ok every time the officer wants to stop all he's got to do is come up with some kind of a  an explanation somebody needs might need medical help somebody might need air in their tires i mean if there's no immune to this there's never going to be an illegal stop again based on that kind of