The Community Caretaker Function Exception to the Warrant Requirement
by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail: jcall@radford.edu
U.S. SUPREME COURT CASES
In 1973, the Supreme Court decided Cady v. Dombrowski,1 a case that established a new exception to the warrant requirement but has never received a great deal of attention from the Supreme Court since. This lack of attention is somewhat surprising, because the case has the potential to be the source of a great deal of law of great significance to law enforcement.
In Cady, the police officers of a small town in Wisconsin searched Dombrowski’s car for a handgun. At the time of the search, Dombrowski was in a coma in a local hospital as the result of an automobile accident. The police knew that he was a Chicago police officer, that Chicago police officers were required to carry their service revolvers with them at all times, and that Dombrowski’s service revolver had not been found in a cursory search of the rental car he was driving at the time of the accident. The police returned to the rental car to look more thoroughly for the service revolver, presumably so it would not fall into the wrong hands. As a result of this search, the police found evidence of a possible crime. As a result of this information, the police discovered the body of a murder victim, discovered evidence linking Dombrowski with the killing, and charged him with murder.
The Supreme Court permitted this warrantless search, conducted without any reason to think the police would find evidence of a crime. In doing so, the Court created what is sometimes called the community caretaker function (CCF) exception to the warrant requirement. The Court recognized that local law enforcement officers (as opposed to federal law enforcement officers) often engage in activities that are “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”
In two later cases (South Dakota v. Opperman2 and Colorado v. Bertine3), the Court also referred to Cady. In these cases, the Court allowed warrantless inventories of lawfully impounded vehicles as a special type of community caretaker activity. The inventories without a warrant were justified on the basis that the police are entitled to protect themselves from possible harm from dangerous items that might be in the vehicle, to protect themselves from claims that the police have removed items of value from the vehicles, and to identify items that require special safekeeping.
So far as the United States Supreme Court is concerned, all we know about the scope of the community caretaker function doctrine is what little information can be gleaned from these three cases. Since the Supreme Court has said so little about this exception, we must look to state case law for further guidance.
VIRGINIA CASES
The Virginia Court of Appeals has decided five cases involving the community caretaker function doctrine. There are two quite remarkable aspects to these five cases. First, three of the cases resulted in en banc decisions by the Court of Appeals. Most cases decided by the Court of Appeals are decided by panels of three judges. In unusual cases, the case is reheard by all the judges of the court (after a decision by a 3-judge panel). The effect of the en banc decision, of course, is to void the decision of the 3-judge panel. That three of the five CCF cases were reheard by the court en banc is quite unusual. Second, only one of these cases was subsequently heard by the Virginia Supreme Court, and that case was decided in a manner that leaves considerable doubt about that court’s view of the CCF doctrine.
In the first Court of Appeals CCF case, Barrett v. Commonwealth,4 a state trooper had stopped Barrett’s truck with his flashing lights because the truck had been stopped on the shoulder of a road with two of the tires resting on the shoulder and two resting on private property to the right of the shoulder. When the trooper turned around and pulled behind the truck, the truck moved forward, with its two right tires remaining off the shoulder of the road. The trooper testified that he stopped the truck at this point because he thought the truck might be experiencing mechanical difficulties.
The 3-judge panel that first decided this case ruled that the stop could not be justified as a proper exercise of community caretaker functions. The court indicated that the three U.S. Supreme Court cases discussed above limited the CCF doctrine to inventories of cars that had been properly seized by the police.
The en banc court reversed the judgment of the 3-judge panel and upheld the state trooper's actions as a reasonable exercise of community caretaking functions. The court indicated that when the trooper first saw the defendant's truck
"stopped off the shoulder of the road in the nighttime, he reasonably perceived a situation of mechanical breakdown or personal distress. When he returned to the scene, the truck had begun moving, but in an unusual manner, proceeding slowly, still partly on the shoulder and partly on private property. The trooper reasonably concluded that the occupants of the truck might need help. The driver could have been easing a malfunctioning truck up the shoulder, hoping to find assistance. The occupants could have been injured or sick. They might have been people whose safety would be jeopardized by being stranded on the highway. All these possibilities were consistent with the situation confronting [the trooper]. Had he simply passed by without inquiry or the offer of assistance, he would have failed in his duty to offer the alert, kindly helping hand that our society rightly expects of its police officers."
In upholding this type of police action, the court established a rule that would be utilized in future cases to determine the legality of an action taken by the police under the guise of their community caretaking functions. The test would be whether an officer "harbors a reasonable and articulable suspicion, based upon observed facts or a credible report, that a citizen is in distress or in need of assistance." An officer possessing such reasonable suspicion can "lawfully effect an appropriately brief and limited seizure for the purpose of investigating that suspicion and rendering aid."
The Virginia Supreme Court overturned Barrett's conviction, but in doing so, it failed to come to grips with the issue of the authority of the police to stop citizens while exercising its community caretaking functions. Instead, the court sidestepped this issue by ruling that even if "the so-called `community caretaking functions' doctrine will be applied in Virginia when the evidence is sufficient to show that [a] detained person required police assistance," there was insufficient evidence in this case. The court concluded that "Barrett's `odd' conduct, without more, did not give rise to a `reasonable suspicion, based on objective facts,' that he needed police assistance." By basing its decision on a finding that reasonable suspicion did not exist, the Virginia Supreme Court avoided the more important question of whether the CCF doctrine would permit a stop based on reasonable suspicion that the person stopped needed police assistance.
In Commonwealth v. Waters,5 the Court of Appeals held that the CCF exception is not limited to incidents involving automobiles. The court indicated that the exception applies where: 1) an officer’s initial contact or investigation is reasonable, 2) the intrusion is limited, and 3) the officer is not investigating criminal contact under the pretext of exercising his community caretaking function. (The court refers to this as an objective reasonableness test, although the third factor would seem to be subjective in nature because it appears to call for a conclusion about the intentions of the officer in the case at hand). The court held that the stop of Waters was constitutional because it was reasonable for the officer who stopped Waters to conclude that Waters was in need of assistance. (The officer had observed Waters walking unsteadily, thought he was intoxicated, and stopped him to see if he needed assistance).
In Terry v. Com.,6 a police officer had been called to a park to assist Terry, who was in medical distress, struggling to breathe. In an effort to locate additional information that might help the emergency medical team that had arrived also and was assisting Terry, the officer looked through a fanny pack that Terry (who appeared to have been fishing in a lake at the park) was wearing. In the fanny pack, the officer found a wallet and a pack of cigarettes. When the officer found some cigarette rolling papers in the wallet, he began to suspect that Terry may have been smoking marijuana and looked in the pack of cigarettes, where he found what turned out to be a marijuana “joint.”
Terry argued that when the officer looked in the cigarette pack (after finding the rolling papers in Terry’s wallet), his investigation shifted from a community caretaker activity to a criminal investigation for evidence of drug possession. The Virginia Court of Appeals rejected this argument, concluding that
"[the officer’s] conduct at all times was consistent with rendering aid and assistance to Terry because of his medical condition. [The officer] first assessed Terry's condition; then he sought an identification and other pertinent medical information. [The officer] found the rolling papers, which he associated with marijuana use. He continued the search in order to determine the cause of Terry's medical condition and to aid in his treatment. The information concerning the marijuana was relayed to the EMS team."
In Wood v. Commonwealth,7 three law enforcement officers went to Wood’s house to investigate a report from his wife that he had assaulted her. After arresting Wood, two of the officers remained in the home awaiting a social services representative who had been summoned to take care of two small children in the house. Eventually, the officers ventured into the upstairs of the house because they had detected a foul odor coming from that part of the house and they knew that Wood’s teenage stepson had been reported missing. One of the officers testified that they went upstairs because they had noticed a light on there earlier, and they “wanted to make sure there was nobody else, no kids or anything.”
In a very confusing en banc opinion, the Virginia Court of Appeals held that the CCF exception did not justify the officers’ entry into the upstairs of Wood’s home. Three dissenting judges disagreed. What makes the opinion so confusing is that the five judges in the majority split into two opinions. One of those opinions (joined by three of the judges) discusses the CCF doctrine but does not cite any Virginia cases!
However, the other two judges in the majority and the three dissenting judges seem to agree that the CCF exception tests established in Barrett (by the en banc Court of Appeals) and Waters constitute the present law on the CCF doctrine in Virginia. Where they disagree is on the application of those tests to the facts in Wood.
In the final analysis, Wood does little to further our understanding of the scope of the CCF doctrine in Virginia. Its primary significance is that a majority of the Court of Appeals judges looked to the en banc opinion in Barrett and Waters for an understanding of the doctrine, suggesting that they view it as the present law on the subject.
The final CCF case in Virginia is Kyer v. Commonwealth.8 In that case, the police went to an apartment (where Kyer lived with his mother) to question Kyer, a suspect in a recent burglary. When they arrived at Kyer’s home, they found the door to the apartment open enough that they could walk through the opening without pushing the door open further. The officers testified that finding a door ajar like this was a common occurrence in this neighborhood and that they typically entered the premises under such circumstances to “make sure everything inside is okay.”
In yet another en banc decision, the Court of Appeals held that “[t]he mere discovery of an ‘open door’ of a residence – absent some other reason for concern – is not, in and of itself, a circumstance that could give rise to a reasonable belief that entry is necessary to prevent harm to persons or property.” (The “in and of itself” language suggests that it is appropriate for a law enforcement officer to consider an open door suspicious, but there must be some other suspicious circumstance in addition to the open door to provide the officer the necessary “reasonable belief.”)
These decisions by the Virginia appellate courts on the CCF doctrine are not a model of clarity. However, a reasonable view of these cases suggests that
- The law in Virginia recognizes that there is a community caretaker function exception to the warrant requirement.
- In order for a police action in stopping a person to be legal under this exception, the police must have reasonable suspicion (not probable cause) that the person stopped is in distress or in need of assistance.
- The courts have not yet elaborated on what constitutes “distress” or “need of assistance.”
- The CCF exception is not limited to stops of persons in motor vehicles. It can justify stops of persons on the street and in their homes.
- The law in Virginia has not yet addressed the issue of whether the CCF exception would justify police stops of persons or intrusions into areas of privacy for the purpose of protecting property that appeared to be in some danger.
It still appears that pretext remains an issue in this area. In a very important pretext arrest case, Whren v. U.S.,9 the U.S. Supreme Court held that the motives of an officer in deciding to stop someone are irrelevant under the Fourth Amendment. However, the Court indicated in Cady, Opperman, and Bertine that the CCF action could not be a pretext to do investigative work. Those statements were made before the Court’s pronouncements about pretext stops. Does this mean that the Court would now disavow the statements made about pretextual actions in Cady, Opperman, and Bertine? Perhaps, but there is good reason to be especially concerned about the exercise of pretextual action in the CCF context. First, the Court pointed out in Whren that one of the reasons not to be concerned about an officer’s motivation is that the stop itself is limited by the requirement that the officer have probable cause (for an arrest) or reasonable suspicion (for a Terry stop). This requirement acts as some control on the discretion of the police. This kind of limitation is less prevalent in the CCF situation. This is especially true with inventory searches (a special type of CCF action), where no level of suspicion is necessary in making the decision to impound a vehicle. While the rule in Virginia requires reasonable suspicion to think a person is in distress or in need of assistance before stopping the person in exercising CCF authority, unless careful definitions of “distress” and “need of assistance” are developed, the potential for abuse of discretion in stopping people under the CCF exception seems particularly great.
[1] 413 U.S. 433.
[2] 428 U.S. 364 (1976).
[3] 479 U.S. 367 (1987).
[4] 435 S.E.2d 902 (Va.Ct.App. 1993); 447 S.E.2d 243 (Va.Ct.App, en banc, 1994; 462 S.E.2d 109 (Va. 1995).
[5] 456 S.E.2d 527 (Va.Ct.App. 1995).
[6] 474 S.E.2d 172 (Va.Ct.App. 1996).
[7] 484 S.E.2d 627 (Va.Ct.App. 1997); 497 S.E.2d 484 (Va.Ct.App., en banc, 1998).
[8] 612 S.E.2d 214 (Va.Ct.App. en banc, 2005).
[9] 517 U.S. 806 (1996).
Disclaimer: The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.