Com. v. Savino, D. ( 2021 )

J-A12028-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEANNA LYNN SAVINO :
:
Appellant : No. 1094 MDA 2020
Appeal from the Judgment of Sentence Entered July 29, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0004383-2018
BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 14, 2021
Deanna Lynn Savino appeals from the judgment of sentence, entered in
the Court of Common Pleas of Dauphin County, following a bench trial where
she was convicted of two counts of possession with intent to deliver a
controlled substance (PWID).1 On appeal, Savino challenges the trial court’s
denial of her pre-trial motion to suppress all physical evidence seized by police
following a traffic stop. Because Savino was stopped without reasonable
suspicion and no exception to the warrant requirement applies under the facts
of the case, we vacate, reverse, and remand.
At approximately 1:00 p.m. on May 28, 2018, Pennsylvania State Police
Trooper Jordan Lantzy was travelling northbound in his vehicle on Route 11/15
when he observed, across the median, a vehicle legally parked on the shoulder
of the southbound lane of travel. N.T. Suppression Hearing, 8/5/19, at 3.
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1 35 P.S. § 780-113(a)(30).
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Trooper Lantzy testified that the driver appeared to be looking at her phone
or digging through her purse and was slumped over towards the passenger
seat. Id. Trooper Lantzy also testified that he always stops when he sees a
vehicle pulled over on the side of the road to check if the driver is okay. Id.
Accordingly, Trooper Lantzy turned around onto the southbound lane, pulled
in about 25 feet behind Savino’s vehicle and initiated his emergency lights.
Id. at 4. From his vehicle, Trooper Lantzy did not notice anything out of the
ordinary with Savino’s vehicle, and he did not see any visible signs of distress
from the driver. Id. at 6. Trooper Lantzy testified that he did not observe
any vehicle violations or have any suspicion of criminal activity. Id. at 13-14.
Trooper Lantzy entered the vehicle’s registration number into the police
database system and determined that it belonged to Savino. Id. at 6. The
database did not indicate any outstanding bench warrants for Savino. Id. at
19. When Trooper Lantzy exited his vehicle and walked over to the driver’s
side of the car, he observed that Savino’s vehicle was running and that the
driver was slouched over toward the passenger seat with a half-eaten
hamburger in her lap. Id. at 7. Trooper Lantzy testified that Savino was
unresponsive and that he believed she was possibly overdosing on drugs and
in need of medical assistance. Id. at 7-8. He immediately called for
Emergency Medical Service (EMS) response. Id.
Trooper Lantzy eventually roused Savino, who was lethargic and “unable
to make sentences.” Id. at 15. Savino testified she was “out of it” at the
time of her encounter with Trooper Lantzy and has no distinct recollection of
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what took place. Id. at 22. When asked at the suppression hearing whether
she was under the influence of any drugs at the time, Savino testified that all
she had done was “touch” some Fentanyl and only remembers breaking up
the burger to share with her dog before being woken up by Trooper Lantzy.
Id. Less than three minutes after Trooper Lantzy roused Savino, he began to
question her about what she had ingested or drank that day. Id. at 8-9. In
the dash camera video recorded by Trooper Lantzy’s police vehicle, which was
viewed by the court at the suppression hearing, Savino indicated that she had
taken a white powdery substance about ten minutes before getting in the car
to drive. Id. at 8-9, 15; Dash Camera Video, 5/28/18.
After waking Savino, Trooper Lantzy requested that she exit her vehicle
and escorted her back to his vehicle and the EMS vehicle. Trooper Lantzy
continued to question Savino at the back of the EMS vehicle. N.T Suppression
Hearing, 8/5/19, at 12. Savino said she thought she had taken Fentanyl. Id.
at 9. Trooper Lantzy then asked Savino if there were any drugs in her car,
and Savino admitted there was a black backpack on the floor behind the
driver’s seat containing drugs. Id. Trooper Lantzy searched the backpack
from Savino’s vehicle; laboratory tests later determined that the substances
in the backpack were eight pounds of methamphetamine and ten grams of
Fentanyl. Id. at 9-10. Trooper Lantzy did not have a search warrant at the
time he searched Savino’s vehicle and backpack, but acknowledged he could
have acquired one relatively easily. Id., at 19. Less than 15 minutes after
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initiating the stop, Trooper Lantzy decided to take Savino into custody. Id.
at 16-17.
Trooper Lantzy escorted Savino to the police station, and they arrived
about 25 minutes after the initiation of the stop. Id. at 16. At the station,
Savino was seen by a drug recognition expert, read her Miranda2 rights, had
her blood drawn, and was fingerprinted. Id. at 16-17. The lab report, dated
June 22, 2018, revealed that Savino’s blood tested positive for amphetamine
and oxycodone. See Affidavit of Probable Cause, 7/5/18. A warrant was
issued for Savino’s arrest on July 5, 2018.
On May 22, 2019, Savino filed a pre-trial motion, alleging her detention
and warrantless vehicle search were illegal and that the contraband discovered
in the back seat of her vehicle should be suppressed. On August 5, 2019, the
trial court held a suppression hearing, at which both Trooper Lantzy and
Savino testified. At the conclusion of the hearing, the trial court denied
Savino’s motion to suppress.3 The trial court determined that suppression
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2 Miranda v. Arizona, 384 U.S. 436 (1966).
3 Despite Pennsylvania Rule of Criminal Procedure 581’s direction that “[a]t
the conclusion [of a suppression] hearing, the judge shall enter on the record
a statement of findings of fact and conclusions of law as to whether the
evidence was obtained in violation of the defendant’s rights, or in violation of
these rules or any statute,” Pa.R.Crim.P. 581(I), here, the trial judge made
no such statement or findings of fact on the record at the conclusion of the
suppression hearing. The trial court’s ruling at the hearing is evidenced by
the following exchange:
(Footnote Continued Next Page)
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was not warranted because Trooper Lantzy’s actions were motivated by a
desire to render assistance and he acted reasonably pursuant to the public
servant exception to the warrant requirement. Trial Court Memorandum
Opinion, 12/8/20, at 6.
Following a bench trial held on January 27, 2020, Savino was convicted
of two counts of PWID. On July 29, 2020, the court sentenced Savino to 7½-
15 years of imprisonment. Savino timely filed a notice of appeal and court-
ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. Savino raises the following issue for our consideration: “Did not the
court err in denying [Savino’s] motion to suppress contraband seized without
a warrant from the trunk of [her] vehicle when the seizure was the unlawful
fruit of an investigative detention that was not based on facts justifying
application of the ‘public servant exception?’” Appellant’s Brief, at 4.
In reviewing a trial court’s denial of a suppression motion, our standard
of review is limited to determining whether its factual findings are supported
by the record and whether the legal conclusions drawn from those facts are
free of error. Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa. 2003).
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The Court: We understand the position of the defense as well as
the Commonwealth’s arguments. We deny the motion to
suppress.
[Defense Attorney]: Your Honor, may I make just a brief
argument?
The Court: No.
N.T. Suppression Hearing, 8/5/19, at 25.
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“[We] may consider only the Commonwealth’s evidence and so much of the
evidence for the defense as remains uncontradicted when read in the context
of the record as a whole.” Commonwealth v. Russo, 934 A.2d 1199, 1203
(Pa. 2007) (citation omitted). While we are bound by the suppression court’s
factual findings that are supported by the record, we are not bound by its
conclusions of law which are subject to plenary review. Commonwealth v.
Gaul, 912 A.2d 252, 254 (Pa. 2006); Commonwealth v. Dean, 940 A.2d
514, 516 (Pa. Super. 2008) (internal citations omitted).
Savino argues that Trooper Lantzy effected an investigative detention
when he positioned his vehicle behind her vehicle on the side of the roadway
and activated his overhead emergency lights. She further argues that the
“public servant exception” to the warrant requirement does not apply to justify
the warrantless stop because the trooper was unable to articulate any specific
and objective facts prior to effecting the stop that would reasonably suggest
Savino needed assistance. Appellant’s Brief, at 13-14.
In its Rule 1925(a) opinion, the trial court concluded that Trooper
Lantzy’s observation of Savino on the side of the highway was a “specific,
objective, and articulable” fact reasonably suggesting Savino needed
assistance that justified the application of the “public servant exception.” Trial
Court Memorandum Opinion, 12/8/20, at 5-6. This exception exempts certain
police actions motivated by a desire to assist citizens from the warrant
requirement, under the umbrella of the “community caretaking doctrine.”
Commonwealth v. Wilmer, 194 A.3d 564, 568-69 (Pa. 2018).
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“Both the United States and Pennsylvania Constitutions prohibit
unreasonable searches and seizures.” Commonwealth v. Garibay, 106 A.3d
136, 139 (Pa. Super. 2014).
[T]he issue of whether an individual has been seized is distinct
from the issue of whether that seizure was reasonable. The fact
that a search may be deemed reasonable pursuant to an
‘exception’ to the warrant requirement does not mean that the
individual was not subjected to a seizure in the first instance.
Commonwealth v. Livingstone, 174 A.3d 609, 619–20 (Pa. 2017) (footnote
omitted).
In Commonwealth v. McCoy, 154 A.3d 813 (Pa. Super. 2017), this
Court delineated the three types of encounters between law enforcement
officials and private citizens as follows:
A “mere encounter” need not be supported by any level of
suspicion but carries no official compulsion to stop or respond. An
“investigative detention” must be supported by reasonable
suspicion and subjects the suspect to a stop and a period of
detention, but it does not have the coercive conditions that would
constitute an arrest. The courts determine whether reasonable
suspicion exists by examining the totality of the circumstances.
An arrest, or “custodial detention,” must be supported by probable
cause.
Id. at 816 (citation omitted). Under the Fourth Amendment, a person is
considered seized “only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he [or she] was not
free to leave.” United States v. Mendenhall, 446 U.S. 544, 554 (1980).
See also Commonwealth v. Edwards, 194 A.3d 625, 632 (Pa. Super. 2018)
(mere encounter can be any formal or informal interaction between officer and
citizen; hallmark of this interaction is that it carries no official compulsion to
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stop or respond, whereas investigative detention carries such compulsion by
implication). The “free-to-leave” standard is objective and “dependent not
upon a particular suspect's subjective impressions or reactions, but upon a
reasonable person's interpretation of the police's conduct.” Commonwealth
v. Harper, 611 A.2d 1211, 1215 (Pa. Super. 1992). If there is any
uncertainty as to whether an individual has been seized, “the crucial inquiry
is whether the officer, ‘by means of physical force or a show of authority,’ has
restrained a citizen’s freedom of movement.” Livingstone, supra at 619
(quoting Mendenhall, supra at 553).
Here, the suppression court upheld the warrantless stop and search of
Savino and her vehicle based upon the “public servant exception” to the
community caretaking doctrine. The doctrine acknowledges that the role of
police is not limited to criminal activity, but also includes ensuring public safety
and welfare, and it encompasses three specific exceptions for this purpose:
the emergency aid exception, the automobile impoundment exception, and
the public servant exception. Livingstone, supra at 626-27.
In Livingstone, supra,4 our Supreme Court held that a police-citizen
interaction, almost identical to the instant case, constituted an investigative
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4 The Livingstone opinion was authored by Justice Todd. Justices Saylor and
Dougherty joined in Justice Todd’s decision. Justice Baer joined sections I
(Background), II(A) (Seizure v. Mere Encounter) and II(B) (Community
Caretaking Doctrine) of the opinion. Justices Donahue and Wecht joined
sections I, II(A), & III (Conclusion) of Justice Todd’s decision. While Justice
Donahue authored a concurring and dissenting opinion, in which Justice Wecht
joined, Justice Mundy authored a dissent. Thus, sections I, II(A), II(B), and
III garnered joinders of a plurality of the Court.
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detention that was not justified under the public servant exception. In that
case, a trooper, driving in his police cruiser on the highway at night, noticed
that a vehicle was stopped on the shoulder of the road, and that the car’s
engine was running but the hazard lights were not activated. Id. at 614. The
trooper then activated his emergency lights and, with his passenger-side
window rolled down, pulled alongside the vehicle. Id. The trooper’s
subsequent interaction with the defendant-driver led to her arrest and the
filing of several charges for driving while intoxicated. Id. at 614-15. The
defendant filed a motion to suppress evidence of her blood alcohol content on
the basis that, once the trooper activated his overhead emergency lights, she
was subjected to an investigatory detention unsupported by reasonable
suspicion. Id. at 615. The trial court denied the motion, finding the
interaction between the trooper and the defendant constituted a mere
encounter. Id.
On appeal, this Court affirmed the trial court’s determination that the
initial stop was a mere encounter that did not need to be supported by
reasonable suspicion of criminal activity. See Commonwealth v.
Livingstone, 135 A.3d 664 (Pa. Super. 2015). However, our Supreme Court
granted Livingstone’s petition for allowance of appeal, directed the parties “to
address the potential application of a community caretaking rationale in the
present circumstances,” and listed the issue on discretionary review as
follows: “[w]here a [p]olice [o]fficer approaches a voluntarily stopped motorist
with emergency lights activated, would a reasonable motorist feel that she
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was not free to leave prior to the approaching officer stopping to interact with
her, or, simply passing her by?” Commonwealth v. Livingstone, 135 A.3d
1016, 1016 (Pa. 2016) (per curiam).
In its decision, the Supreme Court ultimately concluded that Livingstone
was seized because the activation of the police vehicle’s emergency lights
effected an investigative detention. Specifically, the Court stated:
It is undeniable that emergency lights on police vehicles in this
Commonwealth serve important safety purposes, including
ensuring that the police vehicle is visible to traffic, and signaling
to a stopped motorist that it is a police officer, as opposed to a
potentially dangerous stranger, who is approaching. Moreover,
we do not doubt that a reasonable person may recognize that a
police officer might activate his vehicle’s emergency lights for
safety purposes, as opposed to a command to stop. Nevertheless,
upon consideration of the realities of everyday life, particularly the
relationship between ordinary citizens and law enforcement, we
simply cannot pretend that a reasonable person, innocent of any
crime, would not interpret the activation of emergency lights on a
police vehicle as a signal that he or she is not free to leave.
...
The fact that motorists risk being charged with violations of the
Motor Vehicle Code if they incorrectly assume they are free to
leave after a patrol car, with its emergency lights activated,
has pulled behind or alongside of them further supports our
conclusion that a reasonable person in [Livingstone’s] shoes would
not have felt free to leave.
Livingstone, 174 A.3d. at 621-22 (emphasis added) (internal citations
omitted).5 See also Commonwealth v. Thran, 185 A.3d 1041, 1044–45
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5 The Livingstone Court cites to both the Pennsylvania Driver’s Manual (PDM)
and the Motor Vehicle Code as further support for its conclusion that a motorist
would reasonably believe that he was not free to leave if an officer pulled
alongside or behind his vehicle and activated his or her emergency lights. See
(Footnote Continued Next Page)
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(Pa. Super. 2018) (where officer activated emergency overhead lights when
stopping defendant, Court acknowledged interaction between defendant and
officer would have been mere encounter if lights had not been activated;
however, defendant was subjected to investigatory detention when officer
activated emergency lights).6
The Livingstone Court also considered whether the defendant’s
seizure could be justified under the public servant exception. Livingstone,
supra, at 626-27. Recognizing for the first time “that a warrantless search
or seizure may nonetheless be deemed reasonable under the Fourth
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id. at 621-22 (“The PDM first provides: “You will know a police officer wants
you to pull over when he or she activates the flashing red and blue lights on
top of the police vehicle.’ . . . [and] further ‘recommends’ that drivers follow
certain procedures ‘[a]nytime a police vehicle stops behind you . . .’ Moreover,
pursuant to Pennsylvania’s Motor Vehicle Code, a driver of a motor vehicle
‘who willfully fails or refuses to bring his vehicle to a stop, or who otherwise
flees or attempts to elude a pursuing police officer’ . . . may be convicted of a
second-degree misdemeanor.”) (citing Pa. Driver’s Manual at 78, available at
http://www.dot.state.pa.us/Public/DVSPubsForms/BDL/BDLManuals) (last
visited 6/21/21); 75 Pa.C.S. §§ 3325(a), 3733(a)-(b)).
6 Although Livingstone held the use of emergency lights alone was sufficient
to constitute an investigative detention, as in the instant case, other cases
citing Livingstone have involved the use of both emergency lights and sirens.
See, e.g., Commonwealth v. Wilson, 237 A.3d 572, 578 (Pa. Super. 2020)
(“[T]he corporal displayed authority over [the defendant] which restrained his
freedom of movement from the moment he turned his emergency lights and
siren on.”); Commonwealth v. Venable, 200 A.3d 490, 499 (Pa. Super.
2018) (“Here, [the defendant] was subjected to a seizure when Sergeant
Johnston activated his lights and sirens to conduct the traffic stop,
notwithstanding [the defendant’s] failure to comply immediately[.]”) (quoting
Livingstone, supra at 621).
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Amendment when conducted pursuant to the public servant exception,” the
Court stated:
[I]n order for a seizure to be justified under the public servant
exception to the warrant requirement under the community
caretaking doctrine, the officer must point to specific,
objective, and articulable facts which would reasonably
suggest to an experienced officer that assistance was
needed; the police action must be independent from the
detection, investigation, and acquisition of criminal
evidence; and, based on a consideration of the surrounding
circumstances, the action taken by police must be tailored
to rendering assistance or mitigating the peril. Once
assistance has been provided or the peril mitigated, further police
action will be evaluated under traditional Fourth Amendment
jurisprudence.
Id. at 637-38 (emphasis added).
Although the test above was referred to as a “reasonableness” test, the
list of specific factors and use of the word “and” indicate all three prongs are
required for the public servant exception to apply. Indeed, the Court found
the public servant exception did not apply in Livingstone because the officer
failed to satisfy the first prong:
We have no reason to doubt [the trooper’s] statement that he
pulled alongside Appellant’s vehicle simply to check to see
whether she needed assistance. However, regardless of his
intentions, based on our review of the record, [the trooper] was
unable to articulate any specific and objective facts that would
reasonably suggest that Appellant needed assistance. Indeed,
[the trooper] conceded that he had not received a report of a
motorist in need of assistance, and did not observe anything that
outwardly suggested a problem with Appellant’s vehicle.
Moreover, although it was dark, the weather was not inclement.
Finally, Appellant, who was inside her vehicle, did not have her
hazard lights on.
Thus, we are constrained to hold that [the trooper’s] seizure of
Appellant was not justified under the public servant exception,
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and, therefore, that the evidence obtained as a result of that
seizure should have been suppressed at trial.
Id. at 638 (emphasis added).
Here, the suppression court did not address whether a seizure occurred
when Trooper Lantzy first pulled to the side of the road to investigate the
situation, but the court did acknowledge that Trooper Lantzy activated his
emergency lights when he pulled behind Savino’s vehicle.7 The trial court
relies on an unpublished memorandum decision, Commonwealth v.
Robertson, 209 A.3d 1041 (Pa. Super. 2019) (Table), to conclude that
Lantzy’s actions were justified under the public servant exception. However,
in addition to the fact that this case is not binding authority,8 the facts of the
instant case are readily distinguishable from those in Robertson.
In Robertson, two Harrisburg City police officers, on patrol at 3:45
a.m., were driving down a narrow two-way street with cars parked on both
sides when they noticed a vehicle, with two motionless occupants, parallel-
parked on the opposite side of the street. The officers testified that Harrisburg
City police officers have experienced “numerous” situations in the past where
similar individuals were in need of assistance. The officers pulled their police
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7 Trial Court Opinion, 8/5/19, at 1-2 (“Lantzy headed south on 11/15, pulled
in approximately 25 feet behind [Savino’s vehicle], and initiated his
emergency lights”). See also N.T. Suppression Hearing, 8/5/19, at 3-4.
8 While we recognize that non-precedential decisions filed after May 1, 2019,
may be cited for their persuasive value pursuant to Pa.R.A.P. 126(b), “[a]n
unpublished memorandum decision filed prior to May 2, 2019, shall not be
relied upon or cited by a [c]ourt or a party in any other action or proceeding[.]”
See I.O.P. 444.C; Pa.R.A.P.126(b). Robertson was filed on February 5,
2019; thus, the trial court could not rely upon it for its persuasive value.
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SUV alongside the driver’s side of the parked car, blocking it in, effectuating
a seizure.9 Based on the occupants’ demeanor and behavior during the
interaction that followed, the officers suspected they were under the influence
of drugs or alcohol; two bags of marijuana were ultimately recovered from the
vehicle. Robertson filed a motion to suppress, arguing that all evidence
recovered as a result of the seizure, including the bags of marijuana, should
be suppressed as the fruit of an illegal detention. The trial court denied the
motion. On appeal, this Court found that the officers’ actions were justified
under the public servant exception, holding the officers’ observation of
Robertson, “leaning back and motionless in his car at 3:45 a.m.” from the
opposite side of a narrow two-way street, constituted “specific, objective, and
articulable” facts that would reasonably suggest to an experienced officer that
Robertson needed assistance. Id. at 1046 (internal citations omitted).
Here, unlike the officers in Robertson, Trooper Lantzy had activated
his emergency lights at the time he pulled up behind Savino and before he
exited his vehicle to investigate the situation. Thus, under Livingstone,
Savino was effectively seized at that time. The next question, therefore, is
whether the seizure was supported by reasonable suspicion.
Instantly, Trooper Lantzy testified that “when [he] observed [Savino’s]
vehicle on the opposite side of the road,” “[t]here was nothing illegal about
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9 Unlike the instant case, the police officers in Robertson did not activate
their emergency lights, but rather Robertson was seized because his vehicle
was unable to legally exit its parking space when the police pulled their SUV
alongside it. Id. at 1045.
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what she was doing being parked there.” N.T. Suppression Hearing, 8/5/19,
at 13-14. Trooper Lantzy also “didn’t notice anything out of the ordinary when
[he] first pulled up while [he] was still in [his] vehicle.” Id. at 6; cf.
Robertson, supra. Additionally, Trooper Lantzy did not have any other
reason to detain Savino. Id. at 19 (“Q: At the time of the stop, are you aware
of any kind of notice that she was to be detained? In other words, was there
a bench warrant or anything issued and outstanding against her? A: Not that
I recall.”). Thus, there were no independent grounds to seize Savino.
Next, we examine whether Savino’s detention was otherwise justified
under the Fourth Amendment. Instantly, the Commonwealth argues, and the
trial court found that the seizure was reasonable under the “public servant
exception” to the warrant requirement.10 In light of the Livingstone holding,
we conclude that the public servant exception is not applicable here.
Trooper Lantzy was unable to articulate any specific and objective facts
that would reasonably suggest a citizen needed assistance at the time he
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10 The Livingstone Court clarified:
[The] use of the phrase ‘exception to the warrant requirement’
suggests that a warrant generally would be required; yet . . . a
search conducted under the community caretaking doctrine, when
viewed objectively, must be independent from the investigation of
criminal activity, and thus, in such circumstances, there would be
no basis upon which to obtain a warrant in the first instance.
Nevertheless, as most courts characterize the community
caretaking doctrine as an ‘exception’ to the warrant requirement,
[the Court] will occasionally employ that language as well.
Livingstone, supra at 626 n.11.
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activated his emergency lights and pulled behind Savino’s vehicle. Cf.
Robertson, supra (officers were reasonably concerned defendant was sick,
dead, or intoxicated after observing him, from opposite side of narrow street,
leaning back and motionless in parked car at 3:45 a.m.). To the contrary,
Trooper Lantzy’s own policy is to stop any time he sees someone parked on
the side of the road, despite the lack of any other signals indicating the person
is in distress. Trooper Lantzy explained, “any time I see a vehicle pulled over
on the side of the road, be it with the four-ways on or no four-ways on,
regardless, I stop and see if they’re okay.” N.T. Suppression Hearing, 8/5/19,
at 3. The trial court found that Trooper Lantzy’s observation of Savino
“slumped over” into the passenger seat was a sufficient fact to reasonably
suggest to the trooper that his assistance was needed. However, Trooper
Lantzy’s own testimony refutes this assertion; the trooper testified that he
assumed Savino was slumped over because she was digging through her
purse or looking at her phone. Id. at 3 (“It appeared that the driver had or –
was either looking at the phone or digging in their purse[,] but slumped over
towards the passenger seat.”); id. at 4 (Q: “You mentioned that possibly
looking at her phone or looking at her purse, something like that. A:
Yes. Q: Did you know that for sure? A: No. It was just an
assumption.”).
Thus, at the time Trooper Lantzy activated his emergency lights and
pulled behind Savino’s vehicle, he admittedly did not perceive any need for
assistance. Trooper Lantzy only recognized Savino’s need for assistance after
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he effected a seizure and approached her car window. See id. at 6-7 (Trooper
Lantzy testifying, “I didn’t notice anything out of the ordinary when I first
pulled up while I was still in my vehicle.”); id. at 14 (Q: “When was the very
first time that you believed that she was doing something illegal? A: Upon
my arrival to the vehicle and found her unresponsive”). Cf. Robertson,
supra. Moreover, the interaction between Trooper Lantzy and Savino
occurred during the daytime and Savino had not otherwise indicated a need
for assistance.11 Thus, we are constrained to hold that Trooper Lantzy’s
seizure of Savino was not justified under the public servant exception, and,
therefore, the evidence obtained as a result of that seizure should have been
suppressed at trial. Livingstone, supra.
Accordingly, we conclude that the suppression court erred in denying
Savino’s suppression motion where its legal conclusions are not supported by
the evidence of record. Gaul, supra; Dean, supra. Trooper Lantzy lacked
reasonable suspicion at the time he effected the investigatory detention.
Moreover, Trooper Lantzy was unable to articulate any specific objective facts
that reasonably suggested a citizen needed assistance at the time he pulled
behind Savino’s vehicle and activated his emergency lights. Thus, the public
servant exception to the warrant requirement does not apply, and the seizure
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11 Savino’s hazard lights did not appear activated, nor did the weather appear
inclement in the dash camera video. See Dash Camera Video, 5/28/18.
However, neither Trooper Lantzy nor Savino testified with regard to the
weather at the time of the stop or whether Savino had her hazards activated
when Trooper Lantzy first observed her vehicle or any time prior to activating
his emergency lights.
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of all physical evidence from the illegal investigative detention of Savino
should have been suppressed. Livingstone, supra.
Judgment of sentence vacated. Order reversed. Case remanded for
proceedings consistent with this decision. Jurisdiction relinquished.12
Judge Musmanno joins this Memorandum.
Judge Stabile files a Concurring Statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/14/2021
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12 While I share many of the same concerns that my esteemed colleague has
expressed in his concurring statement, unless and until the United States
Supreme Court, Pennsylvania Supreme Court, or the Legislature concludes
otherwise, we are bound by the Livingstone holding under the almost
indistinguishable facts of this case.
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