PA Courts Adopt Public Servant Exception to Warrant Requirement

The Public Servant Exception to the Warrant Requirement

Zak T. Goldstein, Esq. - Criminal Defense Attorney

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Livingstone, holding that although Pennsylvania has a community caretaker and public safety exception to the warrant requirement, police officers must be able to provide specific and articulable facts for why a person may be in need of assistance prior to conducting an investigative detention. In other words, police officers may stop a person if they believe the person is in distress or that there is an emergency situation, but the police must be able to provide specific reasons for why they believe an emergency situation exists, they may not conduct a stop as a pretext to investigate criminal activity, and the stop may only as intrusive as the circumstances require. 

Commonwealth v. Livingstone

In Livingstone, a Pennsylvania State Trooper in Erie County saw the defendant’s vehicle pulled over on the shoulder of the highway. The engine was running, but the hazard lights were not activated. The Trooper activated his emergency lights, and with his passenger side window down, pulled alongside the stopped vehicle. The Trooper then began to ask the defendant some questions, and he eventually reached the conclusion that she was under the influence of a controlled substance. Accordingly, he arrested the defendant and charged her with DUI.

Motion to Suppress

The defendant subsequently filed a pre-trial motion to suppress the results of the blood test, arguing that she was stopped without reasonable suspicion or probable cause when the Trooper pulled up next to her and activated his emergency lights. The trial court denied the motion and found that after the Trooper saw the vehicle on the side of the interstate, the Trooper had a duty to determine if the defendant was in need of help. The trial court also found that the Trooper engaged only in a “mere encounter,” meaning he did not need reasonable suspicion or probable cause. With the motion to suppress denied, the court found the defendant guilty of DUI and sentenced her to a period of house arrest.

The defendant appealed. After the Superior Court affirmed the trial court’s denial of the motion to suppress, the Pennsylvania Supreme Court granted review. On appeal, the Supreme Court recognized that the case presented two distinct issues: first, was the defendant seized when the Trooper pulled up next to her with his emergency lights on, and second, if the defendant was seized, was the Trooper justified in stopping her.

The Court found that the first issue was relatively simple; the defendant was seized when a marked State Police vehicle pulled up next to her, rolled the window down, and activated its overhead lights. The Court emphasized both that official driver’s license materials provided by PennDOT instruct motorists that they should not leave when a police officer activates his or her emergency lights and that Pennsylvania law makes it a felony to flee from a police officer after the officer signals for the motorist to stop. Because no reasonable person would feel free to leave when a State Police Trooper activates his or her emergency lights, the defendant was seized when the Trooper pulled up next to her and activated the lights.

Second, the Court found that the Trooper did not have the legal authority to make the stop because the Trooper lacked sufficient information to determine that the defendant was in need of assistance. Once a court determines that police have seized someone for purposes of the Fourth Amendment, the prosecution generally must show that the police had either reasonable suspicion or probable cause depending on how extensive the stop was. In order to support a Terry stop (“an investigate detention”), the police must have reasonable suspicion. In order to arrest someone, the police must have probable cause to make an arrest.

Here, the Trooper did not have reasonable suspicion or probable cause at the time of the stop because he had no indication that criminal activity was afoot or that a crime had occurred solely from the fact that the defendant had pulled over. However, the Court recognized a “community caretaking doctrine” or public safety exception. The community caretaking doctrine applies in three circumstances. First, there is an emergency aid exception. Second, there is an automobile impoundment/inventory exception, and third, there is a public safety exception. For any of these exceptions to apply, the officer must be acting out of a motivation to render aid or assistance rather than an attempt to investigate criminal activity.

The Public Safety Exception (Public Servant Exception)

Prior to this case, the Pennsylvania Supreme Court had never specifically addressed the public safety exception. The Court recognized that the police do not exist solely to investigate and prevent criminal activity. Instead, they are also charged with ensuring the safety and welfare of the Commonwealth’s citizens. At the same time, the Fourth Amendment requires that police officers not conduct warrantless searches without reasonable suspicion or probable cause. Therefore, the Court sought to employ a test for when police can conduct a seizure of this nature that would both allow the police to help members of the public and protect the privacy rights guaranteed by the Fourth Amendment.

Can The Police Conduct A Stop If They Think Someone Needs Help? 

The Court held that in order for the public servant exception (public safety exception) to apply, the Commonwealth must be able to satisfy three requirements. First, police officers must be able to point to specific, objective, and articulable facts that would suggest to an experienced officer that a citizen is in need of assistance. Further, the Court found that the Trooper in this case could not do so because there were too many reasons why the defendant could have pulled over on the side of the road. The Court noted that the defendant could have needed to look at a map, answer or make a telephone call, send a text message, change an address in a navigation system, clean up a spill, or retrieve something from her purse or the glove compartment. Pulling over to the side of the road to do these types of things should be encouraged.

Second, in order for the exception to apply, the police caretaking action must be independent from the detection, investigation, and acquisition of criminal evidence. This does not mean that an officer must completely ignore the nature of his or her role in law enforcement, but it does mean that the courts must meticulously consider the facts and carefully apply the exception in a manner that mitigates the risk of abuse and ensures that police do not use the exception as a pretext for obtaining evidence without a warrant.

Third, the level of the intrusion must be commensurate with the perceived need for assistance. This requires the suppression court to evaluate the circumstances surrounding the seizure, including but not necessarily limited to, the degree of authority or force displayed, the lengthy of the seizure, and the availability of alternative means of assistance.

Here, the Court found that the Trooper did not have any reason to believe that the defendant needed assistance. He had not received a report that a motorist needed help, he did not observe anything that indicated there was a problem with her vehicle, the weather was fine, and the defendant did not have her hazard lights on. Accordingly, the Court reversed the decision of the trial court and ordered that the blood test and other evidence seized as a result of the illegal stop be suppressed.

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PA Superior Court: Guilty Plea Invalid Where Defendant Not Warned of Obligation to Pay Restitution

Commonwealth v. Rotola

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Rotola, holding that the trial court may not order restitution at sentencing in a plea bargained case unless the defendant agreed to restitution as part of the plea bargain.

Theft of Property Lost, Mislaid or Delivered by Mistake and Restitution

In Rotola, the defendant pleaded guilty to theft of property lost, mislaid or delivered by mistake as a misdemeanor of the first degree. The court ordered Rotola to serve 9-24 months, less one day, of incarceration and pay restitution in the amount of $25,000, jointly and severally with his co-defendant. Initially, the court found Rotola solely responsible for the theft of $25,000 in jewelry. However, after Rotola filed a post-sentence motion to reconsider, the trial court made Rotola jointly and severally liable with his co-defendant.

Given the extremely high restitution figure, Rotola appealed. On appeal, Rotola argued that the restitution amount was both not supported by the record and not the direct result of his conduct. Rotola pleaded guilty to theft as a misdemeanor of the first degree, and theft as an M1 indicates that the property stolen was worth less than $2,000. Thus, Rotola argued that it was excessive to impose a restitution amount so far exceeding $2,000 when he pleaded guilty to an offense which suggested the restitution should only be $2,000. He also argued that he was not as culpable as his co-defendant who had actually stolen the property as his role in the crime was to sell only a portion of the stolen goods to a pawn shop.

The Pennsylvania Restitution Statute

The statute governing restitution in criminal cases makes restitution mandatory regardless of ability to pay. It provides:

§ 1106. Restitution for injuries to person or property

(a) GENERAL RULE.-- Upon conviction for any crime wherein property has been stolen, converted or otherwise unlawfully obtained, or its value substantially decreased as a direct result of the crime, or wherein the victim suffered personal injury directly resulting from the crime, the offender shall be sentenced to make restitution in addition to the punishment prescribed therefor.

(c) MANDATORY RESTITUTION.--

(1) The court shall order full restitution: (i) Regardless of the current financial resources of the defendant, so as to provide the victim with the fullest compensation for the loss.

(2) At the time of sentencing the court shall specify the amount and method of restitution. In determining the amount and method of restitution, the court:

(i) Shall consider the extent of injury suffered by the victim, the victim’s request for restitution . . . and such other matters as it deems appropriate.

(ii) May order restitution in a lump sum, by monthly installments or according to such other schedule as it deems just.

(4) (i) It shall be the responsibility of the district attorneys of the respective counties to make a recommendation to the court at or prior to the time of sentencing as to the amount of restitution to be ordered. This recommendation shall be based upon information solicited by the district attorney and received from the victim.

(ii) Where the district attorney has solicited information from the victims as provided in subparagraph (i) and has received no response, the district attorney shall, based on other available information, make a recommendation to the court for restitution.

Restitution in Theft Cases

After Rotola appealed, the Superior Court rejected his second argument, finding that because the defendants acted together criminally to cause a single harm to the victim, both defendants were responsible for the full restitution despite Rotola being somewhat less involved.

The Court, however, agreed with the first argument. It found that there was no agreement as to restitution and no suggestion in the record that Rotola would be responsible for restitution. The plea paperwork did not suggest that he would be responsible for restitution, and the oral colloquy conducted by the sentencing judge did not inform Rotola that he would be responsible for restitution. Given the complete absence of any mention of restitution on the record, the Superior Court agreed with Rotola that the guilty plea to theft could not have been knowing, intentional, and voluntary. Therefore, the Court reversed the conviction and ordered that the plea be withdrawn.

Although the restitution statute makes restitution mandatory, a defendant must be advised of the possibility of having to pay restitution in order for a plea to be valid. The Court specifically required that the defendant be warned on the record of the possibility of having to pay restitution, and the Court also required that the sentencing court follow the procedures specified by the statute, meaning a court is required to hold a hearing and determine the amount of restitution at the time of sentencing. Because Rotola was never informed that he would have to pay restitution, his plea was withdrawn and the court remanded the case for trial.

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Doctor May Not Provide Opinion That Child Was Sexually Assaulted Without Physical Evidence of Abuse

Expert Opinions in Sexual Assault Cases

In Commonwealth v. Maconeghy, the Pennsylvania Supreme Court has just held that a child sexual abuse evaluator may not testify to his opinion that a child was sexually assaulted where the opinion is based solely on the evaluator’s apparent acceptance of the child’s reporting and description of the abuse.

In Maconeghy, the defendant’s sixteen year old stepdaughter reported that she had been raped and otherwise sexually abused on multiple occasions by the defendant when she was eleven years old. Based on her statement, the defendant was arrested and charged with various sex offenses, including rape by forcible compulsion and rape of a child. At trial, the Commonwealth presented the testimony of both the complainant and a pediatrician who evaluated the complainant to determine whether she suffered from sexual abuse.

The Testimony at Trial

After the complainant testified to the abuse, the Commonwealth called the pediatrician to testify to the results of his interview and examination of the complainant. He testified that he had conducted a physical exam of the complainant, and that the physical exam did not reveal any evidence of abuse. In his opinion, however, a physical examination was unlikely to detect evidence of the abuse outside of the first seventy-two hours following an occurrence of a sexual assault.

On cross-examination, the defense attorney repeatedly asked the doctor to concede that there was no physical or medical evidence of abuse. The doctor refused to concede this point, replying that based on the history provided by the complainant, it was clear that she had been sexually abused. Further, on questioning from the prosecution, the doctor testified that he strongly believed that the child had been victimized.

The Appeal

Based on this testimony, the defendant was convicted. Shortly thereafter, the defendant appealed. The Pennsylvania Superior Court reversed the sexual assault convictions, finding that although the defense had opened the door to some of the doctor’s personal opinion by questioning him on cross-examination, the prosecution had pushed it too far on re-direct examination.

The Pennsylvania Supreme Court has now upheld the Superior Court’s decision to reverse the conviction. The Court held that an expert witness may not express an opinion that a particular complainant was the victim of a sexual assault based upon witness accounts couched as history, at least in the absence of evidence of physical abuse. The Court recognized that such opinion testimony from an expert witness usurps the function of the jury. In other words, it is the jury’s job to determine whether or not the crime was committed. The doctor cannot testify that the crime was committed without intruding on that key function of the jury.

Instead, the doctor may testify only to the medical findings of the examination – that is, whether there was evidence of physical abuse and whether evidence of physical abuse would always be present following an allegation of sexual assault. The Court held that it is extremely important to limit the purported medical testimony because of the potential power and persuasiveness of testimony “by those clothed with the mantle of professional expertise,” meaning it will be very difficult for a jury to disregard the testimony of a respected medical doctor.  

Accordingly, the Court upheld the decision of the Superior Court, and the defendant will receive a new trial. The Court declined to rule on whether a doctor would be permitted to testify to this type of opinion in a case with actual physical evidence of abuse. Thus, that remains an open question.

The Impact of the Court's Decision in Child Rape and Sexual Assault Cases

The Court’s decision in Maconeghy is extremely important because it is very common for the prosecution to call these types of expert witnesses in rape and sexual assault cases. This is particularly true in cases involving allegations of child abuse and sexual assault on children. In many cases, complainants wait years after the alleged incident to make any reports to the authorities, and therefore, the case will often come down to the word of the complainant versus the word of the defendant.

By calling respected medical doctors to testify to their opinion that the complainant is telling the truth, the Commonwealth is often able to improperly shroud the testimony of the complainant in a shield of authority and credibility because of the impressive credentials and respectability of the medical doctor. The real question in these cases is whether the jury should believe the complainant’s testimony, but permitting doctors to testify that they believe the complainant makes it much harder for the jury to keep an open mind and reject false testimony. Therefore, this opinion will make it possible for many defendants to have a fair trial by limiting the improper influence of a medical doctor who has no specialized training in determining whether or not a complainant is lying.

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Read the Opinion:

http://www.pacourts.us/assets/opinions/Supreme/out/25655768.pdf?cb=1

PA Superior Court: Child Porn Convictions Arising Out of Same Case Do Not Trigger Lifetime Megan’s Law Registration

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Leonard. In Leonard, the Court found that the trial court erred when it required the defendant to register as a Tier III, lifetime Megan’s Law offender after the defendant pleaded guilty to multiple counts of distribution of child pornography, possession of child pornography, and criminal use of a communication facility. Because distribution of child pornography, which was the most serious charge in terms of SORNA registration, is only a Tier II offense, the trial court should have required the defendant to register as a Tier II offender for 25 years.

In Leonard, the defendant pleaded guilty to various counts of distributing and possessing child pornography as well as criminal use of a communications facility (“CUCF”). At sentencing, the defense attorney argued that the defendant should be treated as a Tier II sex offender because all of the convictions arose from the same criminal episode and the defendant was convicted of all offenses on the same date. The court ruled that defendant would be sentenced as a Tier III, lifetime offender under the SORNA provision which finds that if the defendant “has two or more convictions of offenses listed as Tier I or Tier II sexual offenses,” the defendant becomes a Tier III offender and must register for life. The court did allow the defendant to preserve the issue for appeal.

The defendant was sentenced and filed a notice of appeal. While the appeal was pending, the Pennsylvania Supreme Court decided the case of A.S. v. Pennsylvania State Police, holding that the previously mentioned language dealing with multiple convictions requires separate convictions. Thus, in A.S. (and the companion case of Commonwealth v. Lutz-Morrison­), the Supreme Court held that a defendant who had been convicted of multiple counts of Tier I possession of child pornography at the same time must only register for fifteen years as a Tier I offender.  

In Leonard, the Superior Court held that the same rule applies for when multiple Tier II and Tier I offenses are combined as part of the same case and are part of an ongoing course of conduct. Therefore, the Court remanded the case for re-sentencing with an order that the trial court require the defendant to register only as a Tier II offender. The Court rejected the prosecution’s argument that the defendant improperly challenged his registration by filing a notice of appeal directly to the Pennsylvania Superior Court. The prosecution argued that the defendant should have challenged his registration classification by filing suit against the Pennsylvania State Police in the Commonwealth Court as the Commonwealth Court has jurisdiction over lawsuits against state agencies. The Superior Court rejected this argument, finding that because the defendant was still in the process of serving his sentence and had filed a timely direct appeal, the Superior Court could review the issue of whether the trial court had imposed a legal sentence. Accordingly, the Superior Court remanded the case so that the trial court could re-sentence the defendant as a Tier II offender.

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