TBA Law Blog


Posted by: Wade Davies on Jul 1, 2016

Journal Issue Date: Jul 2016

Journal Name: July 2016 - Vol. 52, No. 7

Recently I was driving to Nashville with my family. A car ahead was smoking and dropping some sort of brightly flaming material at  regular intervals on the interstate. I called 911 (as had others). I don’t know whether the driver was violating any criminal laws, but I’m pretty sure it would have been reasonable for an officer to blue light the car and check on the safety of the driver. (We later saw the car engulfed in flames as the driver jumped out and let the car roll backwards off of an exit ramp).

Would it have been a constitutional violation to stop that car if the officer didn’t see any laws being violated? How that “community caretaking” scenario fits into the Fourth Amendment and Article 1, section 7 of the Tennessee Constitution has been confusing and debated academically for a long time. In State v. McCormick, the Tennessee Supreme Court has explained that in some cases it is constitutionally reasonable for a law enforcement officer to detain someone while performing a safety check rather than a traditional law enforcement investigation. Under McCormick, it would have been permissible to detain the driver of the smoking car to check on the driver’s safety even if there were no laws specifically being broken.

This column is not about theory. There have been many good examinations of the community caretaking exception.[1] Much of the commentary after McCormick has dealt with the fact the court overruled a recent case. It may be unusual to overrule recent precedent, but more important to the practitioner is what the new standard means in the courtroom.

Previously, in State v. Moats, the court held that community caretaking is a legitimate function for law enforcement but that proper community caretaking does not result in a seizure.[2] The defense bar seemed to let out a collective groan upon hearing that Moats was overruled, but my friend Sara Compher-Rice, an excellent DUI practitioner (who took the time to read the opinion before commenting on it), quickly pointed out that there is probably as much if not more for defense counsel to explore under McCormick. Under McCormick, officers cannot just say they were there to help and everything is acceptable — far from it.

So let’s look at the new standard in practice. First of all, the opinion does not change the fact that a warrantless search or seizure is presumed to be unreasonable.[3] Community caretaking is now an exception to the warrant requirement that the state will have the burden of establishing.[4] This will usually come up in practice when an officer responds to a situation where it looks like someone needs help but ends up finding that person is doing something illegal.
Here’s the new rule:

[T]he State must show that (1) the officer possessed specific and articulable facts, which, viewed objectively and in the totality of the circumstances, reasonably warranted a conclusion that a community caretaking action was needed; and (2) the officer’s behavior and the scope of the intrusion were reasonably restrained and tailored to the community caretaking need.[5]

Sara Compher-Rice also pointed out that it may be better for defendants in practice that caretaking encounters are now clearly governed by Fourth Amendment seizure standards rather than being considered consensual encounters. Much of the debate about the Tennessee standard centered on whether “community caretaking” could involve a seizure at all or whether it had to be a form of voluntary interaction.[6] In Moats, the court had indicated community caretaking was not an exception to the warrant requirement because properly carried out it was a form of consensual encounter with law enforcement. It was a bit hard to characterize the interaction in cases like that addressed in McCormick as consensual since the defendant turned out to be slumped over the wheel asleep when the officer approached.

Before setting out the new test, the court defined its mission as “fashioning a test for its application which strikes a proper balance between the public’s interest in having police officers assist citizens in need and the individual’s interest in being free from unreasonable governmental intrusion.”[7]

Objective test. One issue the court addressed was whether the officer must subjectively intend to engage in caretaking. In other areas in which courts have authorized suspicionless seizures, use of a pretext is not allowed — the officer has to intend to engage in the authorized conduct rather than a general law enforcement investigation. Here, the court rejected a subjective test. We won’t be getting into arguments about what officers intended. The court adopted an objective test as to whether the officer objectively possessed facts leading to the conclusion that community caretaking was necessary.

The officer must possess facts leading to the reasonable conclusion that someone needs assistance or there is a threat to public safety. Note that these are fact-intensive inquiries. The task for defense counsel and prosecutors will be to make the best arguments about what it means to need assistance or to threaten public safety.

Need for limitation. Over the years, I’ve represented a number of people who appeared to need assistance and/or threaten public safety pretty much all the time, so there is the possibility for this doctrine to be abused. The court noted that potential and warned that “courts must meticulously consider the facts and carefully apply the exception in a manner that mitigates the risk of abuse.”[8]

Practitioner’s Checklist. Many of the factors the court wants us to look at are ripe for creative lawyering. The court mentioned several relevant factors. We can turn them into a practitioner’s non-exclusive checklist. The following factors from McCormick should be investigated any time the state argues that evidence was derived from a community caretaking encounter:

  1. The nature and level of distress at issue.
  2. The availability of assistance other than the officer. Again, availability of other assistance is a factual question that counsel will have to investigate.
  3. Location. Checking on someone’s safety may be more reasonable in certain dangerous locations.
  4. Time of day.
  5. Risk of danger without the assistance. I assume this means that courts are more likely to find conduct reasonable if the potential risk was higher. In other words, it would make more sense to stop the potentially burning car than to stop someone who seemed lost.
  6. The officer’s behavior and the scope of the intrusion. The “scope of the intrusion” prong presents another real limitation. Even if an officer has reason to check on a situation, that authority is strictly limited to what is necessary to confirm or deny that someone needs help. If the initial concern is cleared, the detention must end. Prosecutors and defense counsel will be arguing about whether an officer exceeded the scope of the necessary intrusion. I predict that it will take years to develop case law to define the proper scope. Will it be proper to pat a subject down for weapons while exercising a caretaker function, for example?

Conclusion. While the community caretaking exception will sometimes allow the admission of evidence seized without reasonable suspicion or probable cause, the court has set out a fact-intensive standard that shouldn’t result in the rubber stamping of officer conduct but will require careful research and investigation by prosecutors and defense counsel.

Notes

  1. See Mark Goreczny, “Taking Care While Doing Right by the Fourth Amendment: A Pragmatic Approach to the Community Caretaker Exception,” 14 Cardozo Pub. L. Pol’y & Ethics J. 229, 230 (2015); Valerie Moss, “The Community Caretaking Doctrine: The Necessary Expansion of the New Fourth Amendment Exception,” Mississippi Law Journal, 2016, forthcoming, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2583863; David L. Hudson, “Courts in a muddle over Fourth Amendment’s community caretaking cxception,” ABA Journal, The National Pulse, Aug. 1, 2013, http://www.abajournal.com/magazine/article/courts_in_a_muddle_over_4th_amendments_community_caretaking_exception/.
  2. Ward, Hon. Mark, Tenn. Criminal Trial Practice § 3:2 (2015-2016 ed.); Oberman, Steven, DUI: Crime and Conseq. in Tenn. § 3:4 (2015-2016 ed.)
  3. State v. McCormick, No. M201302189SCR11CD, 2016 WL 2742841, at *4 (Tenn. May 10, 2016).
  4. McCormick, No. M201302189SCR11CD, 2016 WL 2742841, at *8.
  5. McCormick, No. M201302189SCR11CD, 2016 WL 2742841, at *1.
  6. McCormick, No. M201302189SCR11CD, 2016 WL 2742841, at *7.
  7. McCormick, No. M201302189SCR11CD, 2016 WL 2742841, at *8.
  8. McCormick, No. M201302189SCR11CD, 2016 WL 2742841, at *9.

Wade Davies WADE?DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.