[J-12-2018] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 40 MAP 2017
:
Appellee : Appeal from the Order of the Superior
: Court at No. 296 MDA 2016 dated
: December 05, 2016, Reconsideration
v. : denied February 9, 2017, Affirming the
: Judgment of Sentence of the Court of
: Common Pleas of Cumberland
ASHLEY LAUREN WILMER, : County, Criminal Division, at No. CP-
: 21-CR-0003487-2013, dated February
Appellant : 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
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.] - 2
“[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)).
[J-12-2018] [MO: Donohue, J.] - 4
Commonwealth v. Wilmer, A., Aplt.
Combined Opinion