Hypothetically correct community caretaking function

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Hypothetically correct community caretaking function

Gonzales v. State, (Keasler, Publish, 6/27/12). 369 S. W. 3d 851 (Tex. Crim. App. 2012). Defendant did not violate the law. Pulled off the road and came to a stop on the shoulder. 1 a.m. .Only a few businesses, no houses, only light traffic.1 Ofcr Friendly decided that the driver needed assistance and contacted him, noticed he was drunk and arrested him. Fourth A requires only reasonableness with the community caretaking exception.2 Whether an ofcr properly invoked his community-caretaking function requires a two step inquiry (1) whether the ofcr was primarily motivated by a community-caretaking purpose; and (2)whether the ofcr’s belief that the individual needed help was reasonable. 3 The reasonableness of the ofcr’s belief depends on: (1) the nature of and level of distress by the individual (2) location (3) alone or access to others and (4) to what extent a danger to self or others. First factor entitled to greatest weight, not dispositive. Did not apply the fourth factor to this case. Meyers dissent states, an officer cannot investigate to see if community caretaking is needed –he must actually observe a threat to the general public before he can investigate. The majority sets a dangerous precedent here by basically saying that an ofcr may investigate a person’s harmless activities without observing any danger or distress.


Larry Gordon Randall v. State, (Meyers, 10/31/12, publish) 382 S. W. 3d 389 (Tex. Crim. App. 2012). In one of the many, many reasons that I am desperately in love with Larry Meyers4 he issued a dissent to the CCA’s failure to grant PDR to further spank the majority for the Gonzalez5 . “Community caretaking is supposed to be an exception to the warrant requirement that applies only when an officer actually observes that someone is in need of assistance. An officer cannot claim that he is engaged in community caretaking when he is simply investigating a scene to see if something happened.” Appellant was pulled over using his phone thus had access to assistance other than Ofcr Friendly. “Thanks to the majority decision in Gonzalez, officers are now allowed to detain and investigate someone safely pulled over on the side of the road without ever observing any difficulties or distress. If this case is any indication, it looks like officers are taking that opportunity and running with it. . . The majority has basically turned community caretaking into a bed check in boarding school.”

Also look at the following cases:

Solano v. State, 371 S.W.3d 593 (Tex.App.-- Amarillo 2012)

Possession of methamphetamine from the 286 District Court. Affirmed.

1.      Traffic Stop -- Community Care Taking Exception

A deputy sheriff traveling behind Tanya McDaniel as she drove down FM 168. There was at least one other car between their vehicles. Eventually, McDaniel pulled onto the side of the road. Justin Solano got out of the car and raised the hood as the deputy was passing by. The deputy wanted to make sure that everything was all right, so he turned around and drove back to where McDaniel had stopped. He parked in front of McDaniel’s car, unlatched his hood, and turned on his emergency lights to apprize other cars. When the deputy drove up, Solano closed the hood, walked to the passenger window, stood outside it, and began talking to McDaniels. When the deputy got out of his patrol car, he directed Solano to come to him. Solano complied – this, Solano argued, was an unlawful detention where the deputy needed reasonable suspicion to believe crime was afoot before beckoning him over.

Irrespective of whether reasonable suspicion to detain someone exists, an officer may temporarily detain an individual as part of the community caretaking function when circumstances exist allowing a reasonable person to believe that the individual is in need of help. The officer’s primary motive must be concern for the person’s well being – the community caretaking function is "totally divorced" from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute and justifies a seizure only when the officer’s primary purpose was to act for the welfare of the individual in need of assistance. If it is determined that the officer’s primary motive was to act for the welfare of someone needing help, then the court must assess the reasonableness of the officer’s belief that help was needed. This is done by considering four non-exclusive factors: (a) the nature and level of distress exhibited by the person, (b) the location of the person, (c) whether the person was alone or had access to assistance independent of the officer, and (d) to what extent the person presented a danger to himself or others if not assisted.

The Court of Appeals held: (1) there was ample evidence that the deputy was primarily motivated to stop out of concern for the welfare of Solano and McDonald and that his conduct was reasonable: (a) the deputy testified that he returned to McDaniel’s car and stopped in front of it to make sure that everything was fine and that they were going to arrive at their destination; (b) the deputy saw the vehicle pull to the side of the road and Solano raising the hood; (c) the deputy turned on his emergency lights to warn other drivers and unlatched the hood of his patrol car to give McDaniel a “boost,” if needed; (2) the initial interaction or detention at issue could be justified as an instance of an officer legitimately exercising his community caretaking function.

State v. Woodard, 314 S.W.3d 86 (Tex.App.-- Fort Worth 2010)

The State appealed a suppression order in DWI from County Court at Law No. 1, Wichita County. Reversed.

1.      Community Caretaking Exception -- Unlawful

          Shortly after 10 p.m., police officers responded to a dispatch call regarding a car in a ditch at the Y-shaped convergence of Berry Street and the Oklahoma Cut-Off. An anonymous phone call prompted the dispatch, but the caller provided no additional details regarding the accident, the vehicle, the location, or the car’s passengers. As the officers were driving to the accident scene, there was a second dispatch reporting the anonymous caller’s observation of the driver, wearing a dark T-shirt and jeans and walking approximately six blocks north of the accident scene. More than a quarter mile from the wrecked car, and more than six blocks west of the last reported location of the driver, an officer saw Woodard wearing a dark T-shirt and jeans walking on the public sidewalk. Woodard was not breaching the peace, walking illegally, or behaving in a manner that endangered himself or others, and the officers did not believe Woodard was publicly intoxicated when he first saw him, nor did he have reason to make a community caretaking stop. The officer just stopped to ask Woodard a few questions and admitted he had a “hunch” that Woodard was the driver of the wrecked vehicle because his attire matched the vague description provided by the anonymous caller. The officer asked Woodard if he was involved in a collision at Oklahoma Cut-Off and North Berry. Woodard admitted that he had been driving the wrecked vehicle. During the encounter, Woodard said he was drunk and should not have been driving. The officer said that based on his knowledge, training, and experience, Woodard appeared to be intoxicated. Following field sobriety, Woodard was arrested for DWI and agreed to take a breath test. He filed a motion to suppress, alleging lack of probable cause, consent, and that the scope of the seizure and search exceeded that authorized by law. the trial court granted the motion and entered findings of fact and conclusions of law. On appeal, the State argued the trial court erred by granting the motion to suppress because it failed to recognize a police officer’s community caretaking function of responding to a reported automobile accident.

          The community caretaking exception allows police officers, as part of their duty to "serve and protect," to stop or temporarily detain an individual whom a reasonable person would believe is in need of help, given the totality of circumstances. Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999); see Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706 (1973). The community caretaking exception is to be narrowly applied. Wright, 7 S.W.3d at 152. To invoke the exception, an officer's primary motive must be concern for the individual's well-being. Corbin v. State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002). Determining whether an officer has properly invoked his community caretaking function is a two-step process. Id. First, the reviewing court must determine whether the officer was primarily motivated by a community caretaking purpose. Id. Second, the court must determine whether the officer's belief that his assistance was required was reasonable. Id.

          The Court of Appeals held: (1) here, the trial court could have found that the officer was not primarily motivated by community caretaking concerns when he made the decision to question Woodard because when the officer approached Woodard, he (a) was unsure if a wreck existed at the alleged location, (b) possessed no personal knowledge that Woodard had operated the vehicle, (c) admitted the driver’s description was extremely vague, (d) was not concerned for Woodard’ safety, and (e) did not initially observe that Woodard was endangering himself or others. Thus, the State’s community caretaking argument was rejected.

Scardino v. State, 294 S.W.3d 401 (Tex. App. Corpus Christi 2009)

DWI. Reversed.

1.      Traffic Stop -- Driving on Shoulder - Unlawful Stop

          At approximately 10:30 p.m.  A DPS trooper was southbound on Highway 35 when he came upon a 2005 Ford pickup traveling in the same direction. He saw the pickup weaving back and forth within its lane in a kind of a slow drift but never crossing the line. The driver was weaving back and forth, and was not driving straight. He crossed the fog line, and steered back to get in his lane. When he did, he was angling towards the center stripe. As he was going towards the center stripe, he steered back to keep from crossing the line in an erratic kind of rough driving. The trooper observed the pickup's driving for approximately half a mile before initiating a traffic stop. The trooper explained he initiated the traffic stop out of concern that the pickup was weaving because the driver was medically ill; he did not testify that he initiated the traffic stop because he suspected Scardino was intoxicated. Scardino was subsequently arrested for DWI. On cross examination the trooper admitted did not do anything unsafe; that it was not an unsafe movement; that It was a jerky kind of sporadic driving, but it was at no time unsafe; that all this occurred within Scardino's lane with the exception of crossing over the fog line one time; that after he came off the fog line, he pulled back into his lane but did not cross over another stripe. After cross-examining, Defense Counsel offered a dashboard videotape recording of the events. The State argued reasonable suspicion existed on the grounds that: (1) the trooper believed Scardino violated §545.058 of the Transportation Code by driving on the shoulder; and (2) the trooper appropriately exercised a law enforcement officer's community caretaking function. In orally denying the motion to suppress, the trial court stated: "If it would have been just one weave in there, I probably would have granted it. There was more than one." Later, the trial court issued the following pertinent findings of fact: (1) on January 12, 2007, the Defendant was weaving across the shoulder line (fog line) and almost over the center line and also wove within his own lane while operating a motor vehicle in a public place. He was subsequently pulled over by a DPS officer, and the officer did not specifically state the Defendant did this weaving in an "unsafe" manner; (2) during the traffic stop, the Defendant exhibited signs of intoxication while undergoing field sobriety testing, and was arrested for DWI. Scardino argued the State did not establish that reasonable suspicion existed to pull him over under §545.058(a) or the community caretaking exception. The State, in a four-page brief that did not reference the two justifications it asserted before the trial court, responds by arguing that the detention was justified under the "totality of the circumstances."

This case is analogous to Fowler v. State, 266 S.W.3d 498 (Tex. App.– Fort Worth 2008, pet. ref'd) where an officer saw a truck "commit a traffic violation" by crossing "the white line, approximately a tire's width, and then it drifted over and touched the white line two more times." Regarding whether the driver moved safely, the officer testified there was nothing dangerous about moving over that line because no vehicles were almost struck; that Fowler did not commit any traffic violations other than crossing that line one time; that the incident did not come close to causing an accident. In support of its assertion that the officer had reasonable suspicion to detain the driver, the State argued that Fowler violated 545.060(a) of the Transportation Code, which provides: “(a) An operator on a roadway divided into two or more clearly marked lanes for traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move from the lane unless that movement can be made safely.” The trial court denied the motion to suppress and did not issue findings of fact. The Fort Worth Court of Appeals reversed, holding that the arresting officer failed to articulate specific facts supporting a reasonable suspicion that the driver violated 545.060(a).

Here, the State argued reasonable suspicion existed to stop Scardino because the trooper suspected a violation of §545.058 of the Transportation Code and the "community caretaking function"; (3) 545.058(a) provides that: “[a]n operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only: (1) to stop, stand, or park; (2) to accelerate before entering the main traveled lane of traffic; (3) to decelerate before making a right turn; (4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn; (5) to allow another vehicle traveling faster to pass; (6) as permitted or required by an official traffic-control device; or (7) to avoid a collision.”

          The Court Appeals held: (1) A review of the record in light of section 545.058 does not reveal a violation of that section because: (a) the trooper did not testify that Scardino "drove" on the shoulder; (b) the trial court did not find that Scardino "drove" on the shoulder; and (c) a thorough review of the "dashcam" video did not show that Scardino "drove" on the shoulder, accordingly, the State could not rely on an alleged violation of §545.058 as a basis for the stop.

2.      Traffic Stop -- Community Care Taking Function - Unlawful Stop

          As a second possible ground to support reasonable suspicion, the State argued that the trooper stopped Scardino because, under an officer's "community caretaking function," he feared for Scardino's safety. On appeal, Scardino argued that there is no evidence to support the community caretaking exception. The trial court did not conclude that the trooper exercised his community caretaking function in stopping Scardino. On the other hand, the trial court found that Scardino wove from the shoulder fog line, almost over the center line, and wove within his  lane. Nevertheless, there was an analysis of whether the trial court's finding could support a detention under the community caretaking exception to the Fourth Amendment.

Corbin v. State, 85 S.W.3d 272, 277 (Tex.Crim.App. 2002) (citing Wright v. State, 7 S.W.3d 148, 151 (Tex.Crim.App.1999) held that a police officer may not properly invoke his community caretaking function if he is primarily motivated by a non-community caretaking purpose; (2) in evaluating whether an officer reasonably believes that a person needs help, courts may look to a list of four non-exclusive factors: (a) the nature and level of the distress exhibited by the individual; (b) the location of the individual; (c) whether or not the individual was alone and/or had access to assistance  other than that offered by the officer; and (d) to what extent the individual, if not assisted, presented a danger to himself or others;

          The Court Appeals held: (1) the trial court's findings did not reveal a level of distress that would lead a reasonably prudent person to perceive that Scardino was distressed; (2) a review of the dashcam video shows that Scardino was detained near several convenience stores, and if suffering a serious medical illness, he could have easily pulled into one of the stores for assistance; (3) the video did not reveal that, if unassisted, Scardino presented a danger to himself or others; (4) application of the Corbin factors indicates that the trooper’s alleged exercise of his community caretaking function was not reasonable; (5) there was no reasonable suspicion for the initial stop and that the trial court erred by failing to suppress the evidence developed during the stop.

Doiron v. State, 283 S.W.3d 71 (Tex. App. Beaumont 2009)

DWI. Affirmed.

1.      Traffic Stop -- Community Care Taking Function

          Doiron was stopped by the police because the officer wanted to determine Doiron's condition; he was traveling on the side of the road at 1:00 a.m. with his brake lights blinking intermittently. Doiron argued that the trial court erred in denying his motion to suppress; that the stop of his vehicle was illegal because the arresting officer had no reasonable suspicion supporting the stop; that the officer's assertion he was exercising his community caretaking function was neither reasonable nor "totally divorced" from his investigation of criminal activity. At the suppression hearing, the trial court reviewed the affidavit of the arresting officer, and heard argument of counsel before making its decision. Doiron's counsel argued the stop was illegal because the officer's affidavit failed to state that Doiron committed a traffic offense or was suspected of a crime. The State contended the stop was legitimate because it was proper for the officer to determine Doiron's condition under the circumstances. In denying Doiron's motion, the trial court relied on Wright v. State, 7 S.W.3d 148, 151-52, (Tex.Crim.App. 1999), which recognizes a police officer's community caretaking function as a reasonable exception to the Fourth Amendment's warrant requirement. At the suppression hearing, the only evidence presented to the trial court was the officer’s affidavit: “On August 26, 2006, at approximately 1:00 a.m. I was patrolling in the 1800 block of Western Avenue in West Orange, Texas, when I observed a black, Honda Civic automobile traveling slowly on the side of Western Avenue with the brake lights blinking intermittently. I saw that there was a lone, white male occupying the vehicle. I activated my emergency lights and stopped the vehicle. When I made contact with the driver/suspect, I noticed a strong odor of an alcoholic beverage emitting from his breath and vehicle. I had the suspect exit the vehicle and I noticed that he was unsteady on his feet, that his eyes were bloodshot red and glassy, his clothes were untidy, and he had a stamp on his hand which appeared to have come from a bar. I also noticed that the suspect had vomited on the ground outside of the vehicle he had been operating. I asked the suspect to perform several sobriety tests. He exhibited signs of intoxication on all tests administered. I arrested the suspect for Driving While Intoxicated and transported him to the Orange County Jail. While at the jail, I requested a sample of the suspect's breath or blood and he refused to provide such sample.” At trial, further testimony was elicited by Defense Counsel about the stop and the officer's testimony related to his community caretaking function. When asked “what was Mr. Doiron doing that caused your attention to be directed to his way,” the officer replied, “The way he was driving at 1:00 o'clock in the morning. The way he pulled off to the side of the road and had the door open in his car with his head leaning out of it, directing me his way.”When asked if there were any traffic violations, the officer said there were none, that “I stopped him for community caretaking.He then explained, “We have an obligation to – if I see somebody that may need help or something and feel – I feel that it's my obligation to stop and help the citizen or anybody in the community. And being that he was pulled over with his door open and his brakes were displayed, I felt that it was my duty to make sure that he was okay to operate a motor vehicle on a public roadway.” Still under cross-examination, the officer testified that he was concerned not only for Doiron's safety but also for the safety of others.

In 1999, the Texas Court of Criminal Appeals recognized the "community caretaking" function and its narrow application. Wright, 7 S.W.3d at 151-52 (citing Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973)). As Wright explained, a police officer's job involves more than enforcing the law, conducting investigations, or gathering evidence for criminal proceedings. Id. at 151. An officer also investigates accidents that involve no criminal liability claim, directs traffic, and performs other duties that are best described as "'community caretaking functions.'" Id. (quoting Cady, 93 S.Ct. at 2528). Part of an officer's duty to "serve and protect" involves stopping and assisting "an individual whom a reasonable person--given the totality of the circumstances--would believe is in need of help." Id.

To invoke the community caretaking exception, an officer's primary motive must be concern for the individual's well-being. Corbin v. State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002). Here, the officer testified that he had an obligation to help someone whom he saw and thought might need help, and that as an officer he felt it was his obligation, under the circumstances, to make sure that Doiron was okay.

When determining whether an officer acted reasonably in stopping an individual to determine if he needs assistance, appellate courts consider the following non-exclusive factors: (1) the nature and level of the distress exhibited by the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had access to assistance independent of that offered by the officer; and (4) to what extent the individual--if not assisted--presented a danger to himself or others. Corbin, 85 S.W.3d at 277; Wright, 7 S.W.3d at 151-52. "Because the purpose of the community caretaking exception is to allow an officer to 'seize' and assist an individual whom he reasonably believes is in need of help, the first factor is entitled to the greatest weight." Corbin, 85 S.W.3d at 277.

          The Court of Appeals held: all four factors-distress, location, other assistance, and danger to himself – supported the reasonableness of the officer's actions. Doiron's distress was readily apparent; the driver's door of the vehicle was open and Doiron was vomiting while leaning out the door. As to location, the vehicle was stopped in the road and then pulled slowly to the roadside, with the motor running and the brake lights flashing intermittently. Doiron was alone, so there was no one there except the officer to aid him or to transport him to a location where he could receive care if necessary. Without anyone else available to render assistance, it would be reasonable for Officer Laughlin to stop and determine whether Doiron was in danger. The community caretaking cases are fact specific, and under the circumstances of this case, we conclude that Officer Laughlin acted reasonably. See Lebron v. State, 35 S.W.3d 774, 777 (Tex. App.-- Texarkana 2001, pet. ref'd) (applying exception when the officer found motorist slowly driving away from reported accident on two flat tires before coming to a full stop on the roadway).


Emergency doctrine, consent, revocation of consent, the F word

Miller v. State, Johnson, Keller dissent, 11/21/12. Publish. 393 S.W 3d 255 (Tex. Crim. App. 2012). Neighbors call cops hear noises of things being thrown, loud music and woman yelling. Cops show up, allowed in. See evidence of foregoing. Asked to leave X4, first three times politely, last time with use of the f word. They stay to run the lady of the house (who appears to be alone) for warrants and ask her about her cheating bf who is the source of all the noise. Lady of the house denies FV. As the CCA has been doing lately they claim to give deference to the TCTs fact findings and then re do them. Disarray in home does not equal pc domestic violence has occurred in light of the denials of same. Cops testimony that they were running her for warrants ‘because we always do it that way’ does not authorize them to stay in light of the fact they had been asked to leave. Four times. “LE ofcrs should investigate allegations of domestic violence and protect victims, but if such an investigation reveals that domestic violence was not involved and that there are no victims to protect, ofcrs no longer have a sufficient legal basis for remaining in a residence over the objections of the residence. Kellers dissent would have upheld the suppression of the dope found because the lady could have been covering for her abuser or worse yet have her unfaithful bf beaten up and hidden somewhere. “If the person who had answered the door had been a man, would we have expected the deputies to leave?”

1 Sounds like a safe place to pull over to me!

2 Cady v. Dombrowski, 413 U.S. 433, 441 447-8 (1973).

3 Wright v. State, 7 S. W. 3d 148, 151(Tex. Crim. App. 1999); Corbin v. State, 85 S.W. 3d 272,277 (Tex. Crim. App. 2002).

4 Not the kind of love where I drive to Austin and act stupid.

5 369 S. W. 3d 851 (Tex. Crim. App. 2012).

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