TBA Law Blog


Posted by: David Hudson & Emily Harvey on Nov 1, 2016

Journal Issue Date: Nov 2016

Journal Name: November 2016 - Vol. 52, No. 11

Tennessee Supreme Court Changes Course on Community Caretaking Exception

The Tennessee Constitution is a revolutionary document in its forceful protections of individual liberties. Former Tennessee Supreme Court Justice Daughtrey explained that “the notion of individual liberty is so deeply embedded in the Tennessee Constitution that it alone among American constitutions gives the people, in the face of governmental oppression and interference with liberty, the right to resist oppression even to the extent of overthrowing the government.” Since its creation, the Tennessee Declaration of Rights, the first article of the Tennessee Constitution, has limited the government’s power in favor of individual rights.

In State v. McCormick, the government asked our Supreme Court to loosen those limitations with regard to Article I, Section 7, which is Tennessee’s search and seizure provision. Faced with the daunting task of balancing the need for individual freedom with the need for order, the Tennessee Supreme Court found in favor of the government, adding yet another exception to both the warrant and probable cause requirements under Article I, Section 7 — the community caretaking exception.

State v. McCormick

On April 8, 2012, Officer Trivette, a White County police officer, was driving down Highway 111 when he noticed a Chevrolet Tahoe parked at the Save-A-Lot food store on Knowles Drive. When Officer Trivette pulled onto Knowles Drive to investigate, he realized that the car was blocking 75 percent of the entrance to the parking lot. The car’s back left wheel rested partially in the roadway. It was around 3 a.m., the parking lot was otherwise empty, and the store was closed for the night.

The officer parked his patrol car behind the Tahoe and activated his blue lights, thus effectuating a seizure under the Tennessee Constitution. Under Tennessee’s search and seizure provision, an officer may not seize an individual unless the officer has reasonable suspicion to believe the person is engaged in illegal activity. The state conceded that, in McCormick’s case, the officer did not have sufficient justification for the stop. Therefore, under Tennessee law, any evidence the officer would find subsequent to that stop would be inadmissible against McCormick at trial.

The officer got out of his patrol car and approached the driver’s side of the Tahoe. He looked into the window and saw McCormick “slumped over the wheel.” When the officer could not get McCormick to respond, he opened the door of the car. Officer Trivette suspected McCormick was intoxicated, because of the strong smell of alcohol emanating from inside. He finally woke McCormick and conducted several field-sobriety tests. After McCormick failed most of them, the officer arrested him for driving under the influence.

McCormick filed a motion to suppress the evidence, because the officer obtained it in violation of his rights under Article I, Section 7 of the Tennessee Constitution. In response, the state argued that the police officer did not seize McCormick when he activated his blue lights, because he was unconscious and unaware of the seizure. The state also argued, in the alternative, that even if the officer seized McCormick, he did so in his role as a community caretaker. Thus, he did not need reasonable suspicion to effectuate the stop. The trial court agreed with the state and denied the motion. It ruled that, because the police officer was acting as a community caretaker, and not as a criminal investigator, the officer did not need reasonable suspicion. McCormick appealed to the Tennessee Supreme Court.

Development of the Community Caretaking Doctrine

The U.S. Supreme Court developed the community caretaking doctrine in 1973.[1] The case involved the search of a defendant’s car in Wisconsin. The defendant, a Chicago police officer, had gotten into an accident, and Wisconsin police arrested him for driving while intoxicated. Knowing Mr. Dombroski was a police officer, and suspecting he could have a weapon in the car, an officer decided to search the vehicle for the gun. He testified that he feared the gun would “fall into untrained or perhaps malicious hands.” When he searched the impounded vehicle, he found items connecting Dombroski to a recent homicide.

The defendant, facing murder charges, contended that police found the evidence in his vehicle in violation of his Fourth Amendment rights, because the officer did not have probable cause to search. However, the U.S. Supreme Court ruled that the officer undertook the warrantless search pursuant to “community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”[2] Thus, the court created an exception to both the warrant and probable cause requirements under the Fourth Amendment.

The U.S. Supreme Court has not expounded on the community caretaking doctrine since, but numerous lower courts have examined it. Nearly all of these courts have determined that the community caretaking doctrine is a free-standing exception to the warrant requirement. Though Cady concerned the community caretaking exception as it applied to the warrantless search of an automobile, the Sixth Circuit extended the community caretaking exception to the warrantless search of a home in U.S. v. Rohrig.

In Rohrig, police officers received noise complaints from the defendant’s neighbors. When the officers arrived at Mr. Rohrig’s home, they knocked on his door and attempted to shout over the loud music. When they did not receive a response, they entered through an unlocked door. While looking for the home’s occupant, they found a marijuana grow operation and a sawed-off shotgun. After finally finding the defendant asleep on the floor of one of the bedrooms, the officers arrested him and charged him with possession with intent to distribute and possession of an unregistered sawed-off shotgun. The Sixth Circuit held that, though officers entered the defendant’s home without a warrant, they could do so under the community caretaking exception.

In State v. Moats, a 2013 case, the Tennessee Supreme Court declined to go down the path of the Sixth Circuit. The court ruled that the community caretaking exception applied only to consensual police-citizen encounters.[3] This meant that if a court determined an encounter to rise to the level of an arrest or an investigatory detention, the community caretaking exception did not apply. In a joint dissenting opinion, Justices Cornelia Clark and William C. Koch Jr. pointed out that only four states — Illinois, New Mexico, North Dakota and Tennessee — had ever limited the community caretaking exception to consensual encounters.[4]

Thus, under Moats, Officer Trivette could have fulfilled his community caretaking role by parking his patrol car next to McCormick’s car, without activating his blue lights. Then, Officer Trivette would have been free to initiate a consensual encounter by knocking on Mr. McCormick’s window. The state argued, however, that because it was dark and McCormick’s car was partially in the roadway, Officer Trivette needed to blue light McCormick in the interest of officer safety.

A Change in View: The Court’s Holding in State v. McCormick

The author of the majority opinion in Moats, Justice Gary Wade, retired from the court in 2015. The composition of the court underwent other changes too with the addition of several new justices. In February 2016, a new four-member court heard oral arguments in McCormick. The court declined to wade into the law of seizure and assumed that there was a seizure by the activation of the blue lights. Instead, persuaded that Moats would “do more harm than good,” the court overruled it and held that the officer acted as a community caretaker. Justice Clark wrote for the unanimous court: “First, the holding in Moats is contrary to the overwhelming weight of authority in this country, which recognizes the community caretaking doctrine as an exception to federal and state constitutional warrant requirements.”

The court adopted the two-part test for the community caretaking exception developed in the Moats dissent. This test provides that the exception applies when the state establishes 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, such as the possibility of a person in need of assistance or the existence of a potential threat to public safety; and (2) the officer’s behavior and the scope of the intrusion were reasonably restrained and tailored to the community caretaking need.[6]

The court then examined the facts of the case and determined that the officer did act as a community caretaker when he “approached the car to do a welfare check.”[7]

Assessment and Concerns

The court’s abrupt change in course is somewhat surprising, in that state high courts — or any court for that matter — normally do not overrule one of their own decisions a mere three years later.[8] The McCormick decision places Tennessee with the overwhelming weight of legal authority that the community caretaking exception is a free-standing exception to the warrant and probable cause requirements. The court’s opinion reflects comprehensive research on the community caretaking doctrine. Laudably, the court created a specific test that could potentially prevent abuse by encouraging judges to vigilantly review these cases.

At least three parts of the court’s opinion, however, give those concerned about search and seizure law some pause. First, the court missed the opportunity to explicitly limit the community caretaking exception to automobiles. courts are deeply divided over whether the exception should be limited to automobiles or also used to justify warrantless searches of homes, which receive enhanced privacy protections.[9]

Second, the court signaled that it may be willing to re-address its holding in State v. Randolph[10] providing greater protection against searches and seizures than the U.S. Supreme Court provided in California v. Hodari D.[11] In Randolph, the Tennessee court ruled that the proper test for determining whether someone was seized is whether, under a totality of the circumstances, the person felt free to leave.[12] The U.S. Supreme Court’s Hodari D. standard provided that a person was seized only when he or she submitted to a show of force or physical authority. The Tennessee Supreme Court, as had many other state high courts, believed that the U.S. Supreme Court’s standard was not protective enough of individual freedom under its state constitutional counterpart to the Fourth Amendment — Article I, Sec. 7 of the Tennessee Constitution.

This leads to a third and gravest concern with the Tennessee high court’s decision in McCormick. Some language in the decision reflects a bent that state constitutional provisions in the Tennessee Declaration of Rights are nothing more than mirror images of federal constitutional provisions. The court in McCormick notes that Article I, Sec. 7 of the Tennessee Constitution and the Fourth Amendment are identical in intent and form.[13]

While state high courts often should follow federal precedent as helpful guidance, this does not mean that a state high court should adopt perfunctorily federal precedents. As William Brennan famously wrote: “State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”[14] He further contends, “State constitutions have distinctive language, histories, and provisions that combine with the unique nature of state police power and cultural orientations to produce singular takes on American constitutional jurisprudence.”[15]

Like Justice Brennan, Tennessee Supreme Court Justice Joe Henry epitomized the importance of state constitutions to individual freedom, writing that “state supreme courts, interpreting state constitutional provisions, may impose higher standards and stronger protections than those set by the federal constitution.”[16]

Indeed, Tennessee courts have veered from federal precedent in a number of instances, holding that Article I, Section 7 offers more protection than the Fourth Amendment. Hopefully, the Tennessee Supreme Court will carefully consider the unique nature of its provisions in the Declaration of Rights and the distinctive history of Tennessee before assuming that federal precedent is superior.

Notes

  1. Cady v. Dombroski, 413 U.S. 433 (1973).
  2. Id. at 441.
  3. Moats, 403 S.W.3d at 180.
  4. Moats, 403 S.W.3d at 190 (J. Clark and Koch, dissenting).
  5. McCormick, 2016 Tenn. LEXIS at *28.
  6. McCormick, 2016 Tenn. LEXIS at *33-34, quoting Moats, 403 S.W.3d at 195 (Clark and Koch, dissenting).
  7. McCormick, 2016 Tenn. LEXIS at *35.
  8. A notable exception is when the U.S. Supreme Court overruled itself on the constitutionality of compelled flag-salute laws in public schools. The court overruled Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940) only three years later in West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
  9. David L. Hudson Jr. “Courts in a muddle over 4th amendment’s community caretaking exception,” ABA Journal (Aug. 2013), accessible online at http://www.abajournal.com/magazine/article/courts_in_a_muddle_over_4th_amendments_community_caretaking_exception/
  10. State v. Randolph, 74 S.W.3d 330 (Tenn. 1992).
  11. 499 U.S. 621 (2001).
  12. Randolph, 74 S.W.3d at 337.
  13. McCormick, 2016 Tenn. LEXIS at *24.
  14. William J. Brennan Jr., “State Constitutions and the Protection of Individual Rights,” 90 Harv. L. Rev. 489, 491 (1977).
  15. Robert S. Peck, “For Trailblazers, When the U.S. Constitution is Not Enough,” 45 New England L. Rev. 855, 855 (2011).
  16. Miller v. State, 584 S.W.2d 758, 760 (Tenn. 1979).

Emily Harvey EMILY HARVEY is a J.D. candidate at the Nashville School of Law, set to graduate in December 2016. She received her master of theological studies from Vanderbilt University. She interned as a law clerk for Judge Cheryl A. Blackburn, Davidson County Criminal Court, Division III.

 

 

 

David Hudson DAVID L. HUDSON JR.is the co-editor of The Encyclopedia of the Fourth Amendment (CQ Press, 2013). He also serves as the director of academic affairs and professor of law at the Nashville School of Law (NSL). He teaches classes at NSL and Vanderbilt University Law School. He received his law degree from Vanderbilt.