ALERT

“Community Caretaking Function”

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Introduction

“We serve and protect” is often cited as the theme of the law enforcement community in the Unites States. It is the basis for our existence within the framework of state and local government.

The service and protection we render to the public takes two forms. The first form is the investigation of criminal activity. This can involve stopping people for investigation based on reasonable suspicion, making arrests based on probable cause, conducting searches based on probable cause, with the requirement of having a warrant if constitutionally mandated. All of this activity is controlled by the various rules that flow from the Fourth Amendment.

Some of those rules create exceptions to the warrant requirement; for example, exigent circumstances, hot pursuit, searches incident to arrest, seizures in plain view, vehicle searches, consent searches, inventory searches, border searches and roadblocks. Our stop and frisk power under Terry v. Ohio [1] is also an exception to the Fourth Amendment probable cause requirement, permitting us to investigate criminal activity on the basis of less than probable cause, namely, reasonable suspicion.

All of these activities fall under the large umbrella of what we might call “criminal investigation.”

Community Caretaking Function

The second type of function we provide is not directly related to criminal investigation. It is in the nature of a service function and is commonly referred to as the “community caretaking function.” It is based on the 1973 U.S. Supreme Court decision in Cady v. Dombrowski [2]. and is founded on the concept that the police also serve to ensure the safety and welfare of members of the community. In other words, part of our job is to protect members of the public from harm that may not necessarily be criminal in nature.

In Cady v. Dombrowski, the Supreme Court considered a case in which a defendant’s automobile was disabled as a result of an accident along a highway. The vehicle constituted a nuisance and the defendant, being intoxicated and later comatose, could not make arrangements to have the vehicle removed, so the police had the vehicle towed to a private garage. Since the police knew the defendant was a police officer and believed that he was required to carry his service revolver at all times, and did not find a gun on defendant’s person, a police officer took action designed to retrieve the gun from the automobile because of his “concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the vehicle.”

During this action, which was described as “standard procedure” in the department, the officer discovered evidence of defendant’s involvement in a murder that had occurred in the area. The Court noted the officer’s discovery of the evidence occurred during a “caretaking” effort, a conclusion that was reinforced by the fact that the officer was ignorant of the occurrence of the murder at the time of his discovery of the evidence. Since the officer reasonably believed the automobile contained a gun that was “vulnerable to intrusion by vandals,” this search was reasonable under the Fourth Amendment under the community caretaking function. This function, the Court said, was designed to protect members of the public from harm.

Subsequently, the U. S. Supreme Court applied the rule to routine inventory searches of vehicles, [3] the inventory of closed containers found in impounded cars, [4] and routine booking searches of arrestees. [5] In the state and federal courts the rule has been applied in many different contexts, for example, stranded or sick motorists, lost children, warning people about hazardous materials, 911 calls about injured persons, etc. The courts have held that if while performing this kind of function, the police discover evidence of a crime, they can make an arrest and the evidence is admissible. Alternative labels that courts sometimes use for the community caretaking function are “exigent circumstances” or “emergency circumstances.”

Consider the 2001 case of Alspach v. State. [6] A Sheriff’s deputy was dispatched to an apartment after police received reports of loud noises and a possible fight in progress. The deputy arrived at the scene and noticed on the outside stairs fresh blood drops that trailed toward the apartment in question. He approached the apartment’s front door, which was slightly ajar, and announced his presence. The deputy got no response but he heard someone inside yelling incoherently.

He then pushed the front door open and entered the apartment. He followed the trail of blood into the apartment and found Alspach in the apartment’s back bedroom. When the deputy asked if there was a problem, Alspach cursed him and shoved him out of the way as he walked toward the kitchen. The deputy followed him and Alspach twice attempted to punch the deputy as the two stood in the kitchen. The deputy subdued Alspach with pepper spray and placed him under arrest.

Alspach was charged with resisting law enforcement and battery. Following a bench trial, Alspach was convicted of resisting law enforcement and sentenced to one year. An appeal followed.

The defendant’s conviction was affirmed on appeal. The court said the circumstances justified the officer’s warrantless entry of defendant’s apartment. It said: “When [the deputy. discovered the trail of blood leading up the outside steps of the apartment to Alspach’s front door, he reasonably concluded that delay in entering the apartment might result in further injury or deterioration in the condition of someone inside the apartment who was apparently bleeding. . . . further, after [he. announced his presence, he heard incoherent screaming emanating from inside the apartment, which added to his concern that someone was presently under attack or injured and in need of assistance. . . . ”

The Basic Requirements

From hundreds of cases that have now applied the community caretaking rule under its various labels subsequent to Cady v. Dombrowski, three basic requirements for police action have emerged. This is true whether the courts have used the “caretaking” label, “exigent circumstances” label, or the “emergency circumstances” label.

First. The police must reasonably believe that their assistance is needed immediately to protect human life or substantial property interests. “Reasonably believe” means that reasonable officers faced with the same circumstances would conclude that action was required. This is what the courts call an “objective test,” and it is based on the totality of the circumstances.

Second. The police action must be based, at least in part, on the officer’s subjective belief that life or property are threatened. What this means is that the officer must actually believe that his/her action is required to protect a person or property. This is what the courts call a “subjective test,” and it is based on the officer’s motives.

Third. The police response must be within the scope of the perceived need — it must be no more than reasonably necessary to meet the perceived need to protect life or property. For example, in answering a 911 call indicating a person in a house is injured, we would not expect to find officers searching an attached garage after finding a person on the floor of the kitchen, unless there were additional facts discovered at the scene that made the garage search relevant to the response, or probable cause to believe there was evidence of a crime in the garage, or reasonable suspicion that there was a danger to the police on the premises. These actions would be based on facts arising after the police entry to protect life or property.

Civil Liability Consequences

As with almost everything we do in law enforcement, there is also a potential civil liability consequence under this type of activity. Failure to perform a community caretaking function can have a civil liability consequence. A case illustrating this is Schieber v. City of Philadelphia decided in 2001. [7]

In this case plaintiffs alleged that at 2:00 a.m., Shannon Schieber screamed for help as she was attacked in her apartment; a neighbor called the police for assistance. In response to a “Priority 1” emergency call, two police officers arrived at Schieber’s apartment building where the neighbor stood ready to assist. There was testimony at trial that a “Priority 1” call is the highest classification for a civilian in need of assistance.

The police officers observed the balcony door to Schieber’s apartment was closed and the apartment was dark. They knocked on Schieber’s front door; receiving no answer, they made no further inquiry. They did not attempt to enter Schieber’s apartment.

The officers did not call for assistance to break down the door or seek advice from supervisors on whether to do so. One officer admitted at trial that he would have called a supervisor had he known the call was in response to a woman screaming. Another officer said he would not have forced entry unless he himself heard the screams.

Neighbors, having been assured by the officers that Schieber was not home and told by the officers to call 911 again if they heard any other noises from the apartment, took no further action. The following afternoon, Schieber’s brother and a neighbor broke into Schieber’s apartment and found her dead. She had been murdered. A civil rights suit against the officers and the city followed on a failure to protect theory.

The trial court held that the officers were not entitled to qualified immunity from the victim’s estate’s civil rights action. It held that reasonable officers would have known that their conduct did not conform to due process requirements. It said, “Reasonable officers would have known that their decision not to force the door and to tell neighbors to do nothing but call 911 again if they heard further noise did not conform to constitutional standards.”

Thus, a community caretaking function is not merely an opportunity to assist a member of the public, it may also be a legal duty under constitutional law. Consult your legal advisor about the appropriate forms of action you should take in the wide range of circumstances that fall within the community caretaking function. Remember too, that there may also be potential liability under state tort law such as negligence, for a failure to carry out a community caretaking function.

Endnotes

1. Terry v. Ohio, 392 U.S. 1 (1968).

2. Cady v. Dombrowski, 413 U.S. 433 (1973).

3. South Dakota v. Opperman, 428 U.S. 364 (1976).

4. Colorado v. Bertine, 479 U.S. 367 (1987); Florida v. Wells, 495 U.S. 1 (1990).

5. Illinois v. LaFayette, 462 U.S. 640 (1983).

6. Alspach v. State, 755 N.E.2d 209 (Ind. App. 2001).

7. Schieber v. City of Philadelphia, 156 F.Supp.2d 451 (E.D.Pa. 2001).

© Copyright, 2002 by A.E.L.E. Inc. This document may be reproduced, but not for profit.