[J-12-2018] [MO: Donohue, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

ASHLEY LAUREN WILMER,

Appellant

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No. 40 MAP 2017

Appeal from the Order of the Superior 

Court at No. 296 MDA 2016 dated 

December 05, 2016, Reconsideration 

denied February 9, 2017, Affirming the 

Judgment of Sentence of the Court of 

Common Pleas of Cumberland 

County, Criminal Division, at No. CP21-CR-0003487-2013, dated February 

16, 2016.

ARGUED: May 15, 2018

DISSENTING OPINION

JUSTICE MUNDY DECIDED: September 21, 2018

In Commonwealth v. Livingstone, 174 A.3d 609 (Pa. 2017), this Court held that 

“[o]nce assistance [pursuant to the emergency aid exception] has been provided or the 

peril mitigated, further police action will be evaluated under traditional Fourth Amendment 

jurisprudence[.]” Id. at 627. The Majority foregoes the Livingstone evaluation of further 

police action under Fourth Amendment jurisprudence and substitutes a requirement that 

“once the emergency that permitted the Troopers’ initial entry ceased, their right of entry 

. . . under the emergency aid exception also ceased.” Majority Op. at 20. Therefore,

according to the Majority, the Troopers “must leave the residence unless some other 

exception to the warrant requirement permits their continued presence.” Id. at 13 

(emphasis in original). 

In so holding, the Majority has created a new requirement that the moment the 

emergency is abated, any police presence must independently satisfy a separate Fourth 
[J-12-2018] [MO: Donohue, J.] - 2

Amendment exception, or they must leave the premises. The Majority invokes this rule 

even where the police presence is a continuation of an entry pursuant to the emergency 

aid exception in order to complete an incident report for property damage, and not for 

investigatory purposes. Because I cannot agree with the Majority’s alteration of this 

Court’s holding in Livingstone, I dissent.

In the instant matter, the Troopers’ exit from the sorority house to obtain their 

incident report form, and subsequent reentry to complete it, was deemed a lawful reentry 

by the trial court, and ultimately an unlawful reentry by the Majority. However, I agree 

with the Superior Court that these were not two separate warrantless entries, but rather 

it was one continuous episode under the emergency aid exception of the community 

caretaking doctrine. Critical to this conclusion is the fact that the officers were not entering 

for investigative purposes but only to conclude the lawful warrantless entry, which 

resulted in damaged property. The cases cited by the Majority to support the termination 

of a lawful police presence all hold that the end of the presence related to the emergency 

aid, and the start of a separate investigation into criminal activity, is the point at which the 

officers are no longer lawfully present. See Mincey v. Arizona, 437 U.S. 385, 393 (1978) 

(holding the entry by the homicides detectives to conduct “a four-day search that included 

opening dresser drawers and ripping up carpets can hardly be rationalized in terms of the 

legitimate concerns that justify an emergency search[]”); United States v. Goldenstein, 

456 F.2d 1006, 1010 (8th Cir. 1972) (holding that when the officer was satisfied the 

suspect he was pursuing was not in the room he had entered without a warrant he could 

not conduct a search of a closed suitcase or seize the contents within the suitcase 

because they were not in plain sight); State v. Neighbors, 328 P.3d 1081,1093 (Kan. 

2014), (holding that following a lawful warrantless entry to assist an unresponsive male, 
[J-12-2018] [MO: Donohue, J.] - 3

“[t]he emergency aid exception could not be invoked as a basis for validating the trespass 

investigation[]”). 

It is my view that the Majority’s focus on the separate entries into the sorority house 

is misplaced. In each of the aforementioned cases relied on by the Majority, officers may 

have entered and exited the premises numerous times in order to complete their duty 

pursuant to the emergency aid exception, but the fact of the each ingress and egress 

from the property has never been the focus of the analysis. The focus and analysis in 

those cases concern when the officers cease providing emergency aid and shift to 

investigating a crime. Conversely, the Majority’s analysis here does not focus on the 

troopers’ conduct in attempting to complete an incident report related to their lawful entry, 

nor analyze whether this was the beginning of a separate investigation for criminal activity 

as is the required threshold question. Instead, the Majority’s focus is limited to the two 

separate entries, but creates a rule that will apply to circumstances with only one entry 

followed by a continued police presence. The Majority opinion seems to suggest that had 

the Troopers’ not left at the point in time that they determined the visibly intoxicated young 

man on the roof had fallen to the ground, any further presence in the sorority house would 

also have been unlawful. See Majority Op. at 13, 20. This rule precludes any follow up 

related to the circumstances of the entry to aid in an emergency. As written, this rule

allows police officers to lawfully break windows or doors in furtherance of emergency aid, 

but requires them to immediately leave once the emergency has ended without properly 

documenting the damage and ascertaining the owner of the property.

Further, contrary to the Majority’s assertion, I do not suggest that a “gathering 

information to complete paperwork” exception to the Fourth Amendment exists. Majority 

Op. at 21, n. 16. Rather, I believe the troopers’ presence to complete an incident report 

directly related to the property damage caused is encompassed in the entry pursuant to 
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the emergency aid exception. To require an immediate exit preventing all matters of

follow up oversimplifies real life factual scenarios. However, I recognize that if the 

troopers were reentering to engage in an investigation, they would be required to satisfy 

a separate Fourth Amendment exception.

Accordingly, I would affirm based on the well-reasoned analysis of the Superior 

Court. The Troopers were lawfully present pursuant to the emergency aid exception, and 

“the police may seize any evidence that is in plain view during the course of their 

legitimate emergency activities.” Mincey, 437 U.S. at 393 (citing Michigan v. Tyler, 436 

U.S. 499, 509-510 (1978); Coolidge v. New Hampshire, 403 U.S. 443, 465-466 (1971) 

(parallel citations omitted)).