[J-16-2015] IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

**COMMONWEALTH OF PENNSYLVANIA, Appellant** 

**v.**

**TIFFANY LEE BARNES, Appellee**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **No. 111 MAP 2014 Appeal from the Order of the Superior**  **Court dated January 15, 2014, Reconsideration Denied March 27, 2014,**  **at No. 91 EDA 2013 Affirming the Order of the Court of Common Pleas of Monroe**  **County, Criminal Division, at No. CP-45-CR-1473-2012 dated December 5,**  **2012. ARGUED: March 11, 2015** 

DISSENTING STATEMENT

MR. JUSTICE EAKIN FILED: August 25, 2015 **I respectfully dissent from the per curiam affirmance of the Superior Court’s order.**  **This result affirms the proposition that a police offi cer’s activation of overhead lights on a**  **patrol car automatically creates an investigative deten tion of those in the area; if**  **reasonable suspicion is not extant, turning on those lig hts is per se an unconstitutional act**  **of detention, tainting everything that follows. Thi s is a head-scratchingly terrible result,**  **which should not be given approbation by this court’s af firmance.**  **At approximately 3:00 a.m. in a dark and rural area, a passing state trooper saw**  **appellee pull her vehicle off the roadway and park be tween two auto dealerships that had**  **long been closed for the night. She turned off her car’s lights; she did not activate her**  **four-way blinkers. Seeing this obviously anomalous action given the time and place, the**  **trooper pulled behind her vehicle, activated his overh ead lights, and got out to approach** **[J-16-2015] - 2**

**on foot. At this point, appellee got out of her veh icle, unbidden, and the officer**  **immediately noticed strong indicia of intoxication, eve ntually leading to sobriety tests and**  **a BAC test showing a level of 0.22% (nearly three ti mes the statutory limit).**  **The rationale of both the trial court and Superior Court was that the use of**  **overhead lights amounted to a seizure because it caused appellee to feel less than free to**  **leave; as there was no articulable suspicion of criminal activity when the lights went on,** 

**the officer’s actions were deemed unconstitutional. Th e issue is thus whether an officer**  **without articulable suspicion may constitutionally turn on the overhead lights before**  **approaching a car; to affirm this suppression order, on e must find the officer was not**  **allowed to do so, on pain of violating the Constituti on.**  **In the first place, both the Superior Court and the su ppression court applied the**  **wrong analytical standard; this fundamental error alon e calls for reversal. Both courts**  **relied significantly on subjective testimony. See Commo nwealth v. Barnes, No. 91 EDA**  **2013, unpublished memorandum at 8-9 (Pa. Super. file d January 15, 2014); Suppression**  **Court Opinion, 12/5/12, at 7 (“[T]he arresting office r has conceded that [appellee] was not**  **free to leave once he pulled behind [her] and turned on his overhead lights. [Appellee]** 

**also testified that she did not feel free to leave wh en this occurred. We find these**  **circumstances weigh heavily in favor of finding an invest igatory detention.”). This was** 

**error. Subjective views are immaterial to these determination**  **s. Commonwealth v. Lyles, 97 A.3d 298, 302 (Pa. 2014) (citation omitted)**  **. The trial court erred in considering them as factors, and the Superior Court did as well, e**  **ven after citing the proper standard: an objective test. Under the correct analytical test, w**  **hat the parties thought is irrelevant; [J-16-2015] - 3** 

**what must be conducted is “an objective examination o f the totality of the surrounding**  **circumstances.” Id. (citing Commonwealth v. Strickler, 757 A.2d 884, 889 (Pa. 2000)).**  **No single factor is determinative of whether a seizure occurred. Id. (citation omitted).**  **The totality-of-the-circumstances test “ultimately center [s] on whether the suspect has in**  **some way been restrained by physical force or show of coer cive authority.” Id. (citation**  **omitted). While citing proper law, the Superior Cou rt made no totality examination**  **beyond the use of lights, the subjective and understan dable acknowledgement by the**  **officer that her driving away after his approach would cause him to find out why, and**  **appellee’s subjective reaction (apparently the lights spe cifically triggered the legal**  **talismanic phrase, “Gosh, now I am no longer free to l eave!”).**  **Beyond the wrong standard, the syllogism of the courts below is a model of**  **paralysis by analysis. The analysis goes like this: as appe llee said she did not feel free**  **to leave, she was subject to detention, and as the offi cer did not articulate a basis for**  **detention, his action in turning on his lights was “coerci ve authority” without justification,**  **violative of her constitutional rights. The paralysis i s that this officer apparently had only**  **two constitutionally permitted options: either (1) pul l in behind her very quietly, so he**  **would not alert the driver to his identity in the d ark, at 3 a.m., ignoring the manifest safety**  **risks and the likelihood of scaring the driver half to de ath when he popped out of the dark;**  **or (2) ignore the vehicle altogether and go blissfully down the road thinking, “Gee whiz, I** 

**wonder what that was all about.” The latter would b e a dereliction of duty; the former is a**  **good way to give the driver a heart attack or to get the officer shot.**  **The words “feel free to leave” are a catchphrase, a shorthand mantra when**  **assessing whether a seizure occurred — if a reasonable inno cent person would not feel** **[J-16-2015] - 4**

**free to end the encounter and leave, there is a seizu re. See, e.g., Strickler, at 889**  **(citation omitted). This has always been problematic in the area of traffic stops, where**  **one is not immediately free to leave but knows that th e interaction will be relatively brief,**  **not really an arrest at all. But see Delaware v. Pro use, 440 U.S. 648, 653 (1979)**  **(“[S]topping an automobile and detaining its occupants constitute a ‘seizure’ within the**  **meaning of th[e Fourth and Fourteenth] Amendments, e ven though the purpose of the**  **stop is limited and the resulting detention quite brie f.” (citations omitted)).**  **Here, there was no stop. If an officer’s mere approach of persons not in motion**  **were to be held inherently coercive in and of itself, analysis would be simple, but such an**  **approach is not objectively coercive, and caselaw says so. Neither is it the law that the**  **use of overhead lights can only be a per se, mandatory “you are under detention and no**  **longer free to leave” order, leaving no other object ive possible conclusion; yet that is what** 

**the courts below would have. This is the mischief of subjective versus objective reaction.**  **The subjective reaction when you are intoxicated may be “uh oh” and**  **you properly worry about discovery and detention; when your car is disabled, the subjective**  **reaction is “Thank goodness, help has arrived.”**  **1 Clearly, subjective reactions, necessarily subject to man**  **y variables, cannot be the test. The objective test therefore looks**  **more broadly, and requires more than an act that may engender entirely dissimilar react**  **ions. Activating lights can provoke different reactions, but it does not constitute**  **objective unconstitutional behavior that allows every accused to say “I didn’t feel free to**  **leave,” thus comprising recognized**

**1 Let us not forget that the thankful stranded motorist**  **will seldom be in court to remind us of this alternate reaction to an officer’s approach — we**  **only hear the others. Ironically, it is the officer’s approach that gives the innocent motori**  **st hope that soon they can leave. [J-16-2015] - 5** 

**detention and illegality, absent articulable suspicion. Objectively, lights equal**  **identification, and identification as an officer does n ot constitute coercive authority.**  **Thus, when the courts below concluded the use of lights co mprised an**  **investigative detention that required reasonable suspi cion, they erred; the Constitution**  **was not violated just because the officer activated hi s lights without suspecting criminal**  **activity. Objectively, all this officer did was park be hind appellee’s vehicle with his**  **overhead lights on. He had obvious reason to do so, bu t did nothing to block her vehicle.**  **He did not restrain her movement or interrupt her tr avels. He did not cause her to pull**  **over, and he did not direct her to her chosen stopping place, a gravel pull-out between two**  **closed businesses at three o’clock in the morning. He did n ot brandish a weapon or do**  **anything else to show force. He did not give her ord ers. The use of the overhead lights**  **was the single objective factor bearing on the alleged unconstitutionality of the officer’s** 

**actions. That this is found to be a constitutional vio lation indicates the myopic nature of**  **the subjective “I didn’t feel free to leave so I was il legally detained” analysis applied here.**  **There being no other objective factors before appellee exited her car and**  **demonstrated her intoxication, let us consider the use of the overhead lights. The lights**  **served two obvious and significant purposes. First, the l ights were turned on for**  **everyone’s safety, alerting other motorists to their ro adside presence in the middle of a**  **dark, rural night. N.T. Pre-Trial Hearing, 6/22/12, at 10 (“I wanted to be visible at that**  **point for our safety in case other vehicles came down tha t road.”). Second, the officer’s**  **overhead lights identified him as a police officer, wh ose sudden and otherwise**  **unidentified appearance in an unlit and empty area in the wee hours of the morning would**  **likely create considerable fear in the occupants of the ve hicle.** **[J-16-2015] - 6**

**However, according to the courts below, a reasonable citi zen must apparently**  **ignore these legitimate and justified reasons for the lights. Instead of thinking, “Oh,**  **thank goodness, that car isn’t a rapist; it’s an officer — and good, he’s got his lights on for**  **safety,” the single objective conclusion a reasonable inno cent person is permitted to**  **make is that if the lights go on, they are being detai ned. But see Commonwealth v.**  **Johonoson, 844 A.2d 556, 562 (Pa. Super. 2004) (“It i s one traditional function of State**  **Troopers, and indeed all police officers patrolling our highways, to help motorists who are**  **stranded or who may otherwise need assistance. Such assistan ce is to be expected,**  **and is generally considered welcome.”). Given the util ity of the lights in identifying the**  **approaching officer, and keeping the officer, appellee , and all passing motorists safe, it is**  **unreasonable to find engaging the overhead lights esca lated this encounter into an**  **investigatory detention. See Commonwealth v. Au, 42 A.3d 1002, 1008 (Pa. 2012) (“In**  **terms of the use of the arresting officer’s headlights a nd flashlight [to illuminate the parked**  **vehicle], this was in furtherance of the officer’s safety , and we conclude it was within the**  **ambit of acceptable, non-escalatory factors.”). Suppression is primarily a tool to deter illegal gover**  **nmental actions — denying the government the fruits of illegal searches or seizures**  **. However, suppression is not a reward for those who sell truncated analysis that weave**  **s leaden facts into syllogistic gold. If you cannot point to the officer’s conduct and say “He**  **re is a forbidden, illegal act,” suppression will not lie. I cannot in good faith point**  **to such a place here. Where was the illegality? Did the officer somehow run afoul o**  **f the law by stopping to check on this car? Can it really be that the officer’s use of overh**  **ead lights was unconstitutional [J-16-2015] - 7** 

**behavior? Can one explain to a citizen exactly what this officer did wrong, what act**  **precluded prosecution of this case? Can one do so lookin g them in the eye?**  **Every once in a while, courts must step back from talismani c phrases and look at**  **the reality of what is being announced as the law. If the officer acted illegally here, every** 

**officer in the Commonwealth stands to violate the Cons titution every night, and this simply**  **can never be the law. This officer acted completely re asonably and did not violate**  **appellee’s constitutional rights, and courts should not si mply parrot snippets of analysis,**  **creating a result that is both myopic and illogical. As this decision should not stand, I cannot join the per cu**  **riam decision affirming it. Mr. Justice Stevens joins this dissenting statement.**