TAKING CARE WHILE DOING RIGHT BY THE
FOURTH AMENDMENT: A PRAGMATIC
APPROACH TO THE COMMUNITY CARETAKER
EXCEPTION
*
Mark Gore-ny
...........................................
INTRODUCTION
I.
230
COMMUNITY CARETAKING AND THE WARRANT
231
..... 234
....... 235
REQUIREMENT EXCEPTIONS...........................
A.
B.
II.
The Exigent CircumstancesException.............
The EmergenyAid Exception.................
CIRCUIT COURT POSITIONS ON THE COMMUNITY
........... 238
CircuitCours that Expand the Community Caretaking
238
...................
Exception.................
................. 238
i. Eighth Circuit ................
....... 239
........................
ii. Sixth Circuit.
240
.........
iii. Fourth Circuit.....................
B. CircuitCours that Limit the Communiy CaretakerExcepdon
242
......................................
to Automobiles
..... 242
..........................
i. Third Circuit.
....... 243
......................
ii. Seventh Circuit.
244
..................................
iii. Ninth Circuit
C. The Firstand Second Grcuitsand the Community Caretaking
244
.....................................
Doctrine.
CARETAKING EXCEPTION..................
A.
III. BALANCING THE IMPORTANCE OF COMMUNITY CARETAKER
FUNCTIONS AND FOURTH AMENDMENT PRIVACY
CONCERNS.........................................
246
A. StartingPointsfmm Otherjurisdictions.................. 246
B. Craftinga PragmaicSoludon: Adopting a Modfied Mitchell
250
Test........................................
C. Rethinking the Exclusionary Rule in the Contxt of Community
*Senior Notes Editor, Cardo.o Public Law, Policy, and Eibics journal; J.D. Candidate, 2016,
Benjamin N. Cardozo School of Law; B.A., 2008, Vassar College. I would like to thank my
wife, Amelia Hochman, for her unwavering patience and support. I would also like to thank
my Note advisor, Professor Julie A. Interdonato, for her invaluable guidance and feedback
throughout the entire process.
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CONCLUSION
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.......... 251
...... 257
INTRODUCTION
The police get a call from a woman whose former husband has
custody of their daughter for the weekend. She tells the police that the
man has engaged in domestic violence against her in the past and she is
afraid for her daughter's safety because he is an alcoholic and thinks he
has started drinking again. The police go to the home of the husband,
knock on the door, and announce themselves, but no one responds.
Through the window by the door, they see someone moving around
inside the house; someone else's legs are sticking out on the floor
around the corner of a wall. It's not dear who the man is, or to whom
the feet belong. What do the police do? Can they enter the house and
conduct a search to ensure the safety of the daughter? Or must they
first obtain a warrant and come back later? Currently, the answer is
unclear and differs depending on the jurisdiction in which the scene
happens to play out and whether that jurisdiction has adopted the
community caretaker exception to the warrant requirement. This Note
argues that such a community caretaking search should be allowed, but
a prophylactic exclusionary rule should be enforced in order to guard
against the police using community caretaking as a false pretext to
actually investigate a crime without a warrant.
The situation just described is part of police officers' community
caretaking functions- activities that police undertake to ensure the
public welfare but that are divorced from any motive to investigate
suspected criminal activity. Community caretaking functions, in the
context of the home, are situations in which law enforcement officers
have reasonable grounds to believe their assistance is needed to protect
life or property, and are not primarily motivated by the intent to arrest
or seize evidence. Such a situation does not rise to the level of
emergency because it is not apparent that the threat to someone is
imminent or immediate. The Supreme Court has ruled that law
enforcement officers can search a vehicle without a warrant as a result
of their community caretaking function, but has not ruled on whether
community caretaking can justify the warrantless search of a person's
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home.' Yet, the situation described in the preceding paragraph is also a
case that may eventually lead to injury or death In order to permit the
officers to enter the home, it would have to be justified under some
variant of the community caretaking exception.
Because community caretaking functions play such an important
role in maintaining public safety, courts should recognize a community
caretaking exception to the warrant requirement. Police officers'
community caretaking functions are important parts of their everyday
work; a balance must be struck between the importance of
constitutional concerns at stake in the context of the home, and the
practical necessity of these crucial community caretaking functions. In
addition, by virtue of the potential for abuse of such an exception,
courts should adopt an exclusionary rule, limiting admissible evidence
found through such a search only to evidence found in plain view
directly related to the community caretaking reason for entry.
Section I of this Note will discuss the origins of the community
caretaking exception, how it is different from the other exceptions to
the warrant requirement, and the role of the exclusionary rule and plain
view doctrine regarding the admissibility of evidence. Section II will
give an overview of how the different Circuit Courts of Appeals have
interpreted the community caretaking exception and whether or not it
can apply to the search of homes. Section III will explore the
approaches some courts have taken in balancing constitutional
concerns with the practical necessity of community caretaking
functions. Section III will also argue that the community caretaking
exception should be applied to the search of homes but, because of the
possibility for abuse that it presents, an additional exclusionary rule
should be applied to limit admissible evidence found as a result of such
a search only to evidence found in plain view and related to the
community caretaking search.
I.
COMMUNITY CARETAKING AND THE WARRANT REQUIREMENT
EXCEPTIONS
The police often engage in activities that arise from their role as
community caretakers, and that do not fall under their other duties of
investigating crimes and other statutory violations. Examples of
community caretaking functions police engage in on a regular basis
I Cady v. Dombrowski, 413 U.S. 433, 441 (1973).
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include: conducting a welfare check, looking into the possibility that a
housebound person is injured, and operating sobriety checkpoints.
Community caretaking activities involve actions the police take if they
are completely distinct from any detection, investigation, or acquisition
of evidence related to the violation of a criminal statute.2
While, of course, police have regularly performed these sorts of
activities for years, the Supreme Court first articulated the concept of
community caretaking in the search context in Cad) v. Dombrowki.3 Offduty Chicago police officer Dombrowski was involved in an accident
while driving to Wisconsin, after which he called the police, who
responded and determined that he was drunk. The officers were under
the impression that, as a Chicago police officer, Dombrowski was
required to carry a service revolver on him at all times.' After the
officers towed the car, they searched it for the revolver to no avail, but
instead discovered a flashlight and other items covered in blood.'
Eventually, the discovery of these items implicated Dombrowski in a
murder, and the Court of Appeals reversed the District Court to hold
that some of the evidence found as a result of the original warrantless
search had been unconstitutionally seized.
In Cady, the Supreme Court held that the officers' community
caretaking search of a vehicle was reasonable under the Fourth
Amendment, and therefore, a warrant was not required for such a
search.' The Court justified this exception to the warrant requirement
because of police officers' community caretaking functions that already
existed in the context of public roads and automobiles. Because
automobiles and automobile traffic were already extensively regulated,
and vehicles often became disabled or involved in accidents on public
highways, the extent of police contact with citizens was already much
greater than in the home setting:
Local police officers, unlike federal officers, frequently investigate
vehicle accidents in which there is no claim of criminal liability and
engage in what, for want of a better term, may be described as
2
Id.
3 Id.
4 Id. at 435-37.
5
Id.
6
Id.
Id. at 433.
Id. at 446.
7
8
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COMMUNITY CA RETAKTNG
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community caretaking functions, totally divorced from the
detection, investigation, or acquisition of evidence relating to the
violation of a criminal statute.9
And so, many of those police-citizen interactions will not arise
from circumstances in which the police believe the citizen has violated
a criminal statute. The combination of the automobile's inherent
mobility and extensive interaction between police and citizens in this
context (already bringing police within plain view of evidence)
sometimes justified the warrantless searches of automobiles. 0
Cady discussed the community caretaker exception to the Fourth
Amendment warrant requirement in the context of vehicles. Both State
and Federal Courts, however, have since expanded the community
caretaking exception to also apply to the warrantless searches of
homes." The First and Second Circuit Courts of Appeals have not yet
definitively ruled on the community caretaking doctrine as a
justification for the warrantless searches of homes or residences, when
not performed in response to an emergency situation.12
Many courts (both State and sometimes Federal) conflate or do
not distinguish between the community caretaking exception and other
exceptions to the Fourth Amendment warrant requirement
Some courts treat these exceptions [to the warrant requirement]
interchangeably. Others declare that the community caretaker
exception applies, but then use law applicable to one of the other
exceptions, such as the emergency doctrine. Several courts have also
held that the emergency aid doctrine is a subcategory of the
community caretaker exception, while the emergency doctrine is a
subcategory of the exigent circumstances exception."
To better understand the parameters of the community caretaking
exception, it is necessary to compare and contrast among the other
exceptions. Because this Note takes the position that the community
caretaking exception is separate from the emergency and exigent
9
Id. at 441.
10 Id. at 442.
I See infra notes 36-58 and accompanying text.
)
12 See MacDonald v. Town of Eastham, 745 F.3d 8, 13 (1st Cir. 2014) ('This court has not
decided whether the community caretaking exception applies to police activities involving a
person's home .. .'); Gombert v. Lynch, 541 F. Supp. 2d 492, 498 (D. Conn. 2008) ("Indeed,
although the Second Circuit has not addressed this issue. ..
13 State v. Deneui, 775 N.W2d 221, 232 (2009).
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circumstances exceptions, some time will be spent discussing those.
The Fourth Amendment provides protection against unreasonable
governmental intrusion into an individual's home, property or person:
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized.14
A person's home, in particular, receives a heightened level of
protection from unreasonable searches and seizures." Therefore, the
warrantless search of a person's home is presumptively unreasonable."
While conducting the search of a home without a warrant is
presumptively unreasonable, and the home receives heightened
protection from these searches, this protection is not without limit.
There are exceptions to the warrant requirement, and they are governed
by the Fourth Amendment's ultimate requirement of reasonableness.' 7
A.
The Exiget CircumstancesExcption
The exigent circumstances exception to the warrant requirement
involves a number of different situations in which the requirement is
waived. Like the confusion between the community caretaker and other
exceptions, there is also confusion as to whether the exigent
circumstances and emergency aid exceptions (discussed in the following
section) are distinct.'1 The exigent circumstances exception to the
warrant requirement involve situations in which the police are in hot
pursuit of a fleeing suspect, 9 when the officers are acting to prevent the
14 U.S. CONST.
amend. IV.
Silverman v. United States, 365 U.S. 505, 511 (1961) ("At the very core stands the right
of a man to retreat into his own home and there be free from unreasonable governmental
15
intrusion.').
16
17
Groh v. Ramirez, 540 U.S. 551, 552 (2004).
Brigham City v. Stuart, 547 U.S. 398, 403 (2006).
18 See Macdonald v. Town of Eastham, 946 F. Supp. 2d 235, 242 (D. Mass. 2013), affd, 745
F.3d 8 (1st Cir. 2014) (recognizing the '\widely-shared confusion between and among the
distinct doctrines of community caretaking, emergency aid, and exigent circumstances.'); State
v. Neighbors, 328 P.3d 1081, 1091 (Kan. 2014).
19 Minnesota v. Olson, 495 U.S. 91, 100 (1990) (quoting State v. Olson, 436 N.W2d 92, 97
(Minn. 1989)); United States v. Santana, 427 U.S. 38, 42 (1976) (citing Warden v. Hayden, 387
U.S. 294, 298-300 (1967)).
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COMMUNITY CA RETAKING
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imminent destruction of evidence, 20 or preventing a suspect's escape. 21
In each of these circumstances, the warrantless entry is justified because
there is "such a compelling necessity for immediate action as will not
brook the delay of obtaining a warrant."2 While a law enforcement
officer may not need a warrant to enter and search a residence in an
exigent circumstance, the officer must still show probable cause that a
crime would occur under the circumstances.n
B.
The EmergenyAid Excepion
The emergency aid exception is triggered when a police officer
makes a warrantless entry into someone's home or residence in order to
provide emergency assistance to an injured occupant or to protect an
occupant from an imminent injury.24 Law enforcement officers may only
enter a home "when they have an objectively reasonable basis for
believing that an occupant is seriously injured or imminently threatened
with such injury. 2 5
Courts differ on exactly how to classify the emergency aid
exception. Some argue that it is a separate exception to the warrant
requirement from the exigent circumstances doctrine.26 Some argue that
it is a variant of the exigent circumstances exception, whereas some
argue that it is a community caretaking function that police engage in,
separate from the investigation of a crime. This Note will refer to the
emergency aid exception as applying to those situations where a police
officer enters a home without a warrant to prevent serious, imminent
injury or death to a person, of which the officer is aware. Exigent
circumstances will be used when referring to situations when the officer
is acting to prevent the imminent destruction of evidence, or acting to
20 Olson, 495 U.S. at 100 (quoting Welsh v. Wisconsin, 466 U.S. 740, 754 (1984)); Schmerber
v. California, 384 U.S. 757, 770 (1966) (citing Preston v. United States, 376 U.S. 364, 367
(1964)).
21 Olson, 495 U.S. at 91-92.
22 United States v. Adams, 621 F.2d 41, 44 (1st Cr. 1980).
23 Chambers v. Maroney, 399 US. 42, 51 (1970) ("[The Court has insisted upon probable
cause as a minimum requirement for a reasonable search permitted by the Constitution ...
Only in exigent circumstances will the judgment of the police as to probable cause serve as a
sufficient authorization for a search.").
24 Mincey v. Arizona, 437 U.S. 385, 392 (1978) ("rTihe Fourth Amendment does not bar
police officers from making warrantless entries and searches when they reasonably believe that
a person within is in need of immediate aid.').
25 Brigham City v. Stuart, 547 U.S. 398, 398 (2006).
26 Statev. Neighbors, 328 P.3d 1081, 1091 (Kan. 2014).
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prevent the escape of a suspect when the officer is in hot pursuit.
The New York Court of Appeals established the "Mitchell test", a
three-part test to determine when the emergency aid doctrine is
applicable. The elements of the test are that
(1) The police must have reasonable grounds to believe that there is
an emergency at hand and an immediate need for their assistance for
the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest
and seize evidence.
(3) There must be some reasonable basis, approximating probable
cause, to associate the emergency with the area or place to be
searched. 27
Many other courts have adopted different versions of this test.2
Moreover, the right to conduct a search under the emergency aid
exception lasts only as long as the emergency lasts.29
This Note takes the position that there is a categorical difference
between the emergency aid and community caretaking exceptions.
Though the line may sometimes be blurry, the main difference between
the two is that the emergency aid exception requires immediacy, while
the community caretaker exception does not. That is, for a search to be
justified under the emergency aid exception, the law enforcement
officer must be required to take action immediately to address the
situation, limiting the exception to "emergencies" or "immediate"
threats." Situations in which the emergency aid exception would be
appropriate vary. Examples include situations as diverse as: "[When
premises contain persons in imminent danger of death or harm; objects
likely to bum, explode or otherwise cause harm; or information that
will disclose the location of a threatened victim or the existence of such
a threat, police may search those premises without first obtaining a
People v. Mitchell, 39 N.Y.2d 173, 177-78 (1976).
See infra note 129.
29 Mince, 437 US. at 393 (indicating that since the emergency justifying the search occurred
and had been resolved prior to the officers' entry, the emergency aid doctrine could not be used
as a justification for their warrantless search of a residence).
30 Id. at 392 ("Iihe Fourth Amendment does not bar police officers from making
warrantless entries and searches when they reasonably believe that a person within is in need of
immedia aid.") (emphasis added); see also Michael R. Dimino, Sr., Polie Paternalism: Communi#
Caretaking,Asistance Searches, & FourthAmendwent Reasonableness, 66 WASH. & LEE L. REv. 1485,
1503 (2009) (arguing that immediacy is a main distinguishing factor in identifying appropriate
emergency aid exceptions under the Mithell test).
27
28
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COMMUNITY CA RETAKING
237
warrant."'
Though situations requiring emergency aid are clearly important
parts of a police officer's duties, there are also situations where an
officer's community caretaking duty is implicated, but the level of
immediate action required for the emergency aid exception is not met.
These are the situations in which the community caretaker exception
should be applied.
In addition to the other warrant requirement exceptions, the
exclusionary rule regarding the admissibility of evidence, as well as the
plain view doctrine, are also important to consider in the context of
community caretaking searches. The plain view doctrine allows law
enforcement officers to seize evidence without a warrant if the
evidence is found in plain view of the officer's line of sight, their initial
entry was lawful, and the incriminating nature of that evidence is readily
apparent to the officers. 32 If the police do not have probable cause to
believe that the object in question is illegal or contraband, without
further investigation of the object, the Plain View doctrine would not
justify the object's seizure.3 3 Meanwhile, the exclusionary rule requires
that all evidence obtained in violation of the Fourth Amendment in
criminal trials be excluded in federal and state court."'
Even if a community caretaking search is assumed to be
constitutional and police entry into a home is lawful, under the plain
view doctrine officers could seize any evidence found in plain view in
the course of their search. Under normal, non-community caretaking
circumstances this makes perfect sense, however this Note argues that
the community caretaking exception leaves more room for abuse.
Police may use a false community caretaking function as a pretextual
reason for entry, when they are really motivated by the desire to
investigate criminal activity or obtain evidence. Because of that
potential for abuse, courts should adopt an additional, prophylactic
exclusionary rule for community caretaking searches, which limits
admissible evidence only to that evidence found in plain view related to
the community caretaking reason for entry. Thus, if a police officer
State v. Lynd, 771 P2d 770, 772 (Wash. 1989).
See Minnesota v. Dickerson, 508 U.S. 366, 374-75 (1993); Horton v. California, 496 U.S.
128,136-37 (1990).
33 See United States v. Coleman, 969 F2d 126, 131 (5th Gr. 1992).
34 Mapp v. Ohio, 367 U.S. 643, 655 (1961) ('We hold that all evidence obtained by searches
and seizures in violation of the Constitution is, by that same authority, inadmissible in a state
court.").
31
32
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enters a home to protect the safety of a child (similar to the
circumstances in the introductory paragraph of this Note) and finds
marijuana on the homeowner's bedside table, that evidence would be
inadmissible. While applying this type of prophylactic exclusionary rule
in community caretaking searches may result in some plain-view
evidence being inadmissible, this is an appropriate compromise to make
it possible for the police to engage in activities the public expects of
them.
II.
CIRCUIT COURT POSITIONS ON THE COMMUNITY CARETAKING
EXCEPTION
A.
CircuitCourts that Expand the Community
GQretakingException
The Supreme Court's decision in Cady discussed the community
caretaker exception only in the context of the warrantless searches of
automobiles, but Circuit Courts of Appeals have differed greatly on
whether the exception can apply to the home. The Eighth, Fourth, and
Sixth Circuits have expanded the community caretaker exception to the
warrantless search of homes, while the Third, Seventh, and Ninth
Circuits have limited the exception to automobile searches."
i.
Eighth Circuit
In United States v. Quezada, the court held that an officer could
enter a residence without a warrant when acting as a community
caretaker and when the officer has a reasonable belief of the existence
of an emergency.3 6 The facts of Queqada involve a deputy sheriff who
knocked on an apartment door to serve a child protection order; after
shouting to announce himself several times with no answer, the deputy
opened the unlatched door and went inside the apartment.37 Inside, the
deputy saw a pair of legs (and a shotgun underneath those legs)
protruding from around the comer of a room. The deputy then woke
the man (Quezada), and handcuffed and arrested him38 Quezada was
indicted for being a felon in possession of a firearm, after the trial court
See infra notes 36-59, 61-86 and accompanying text.
448 F.3d 1005, 1007 (8th Cir. 2006).
37 Id. at 1006.
38 Id.
3s
36
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COMMUNITY CA RETAKING
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denied his motion to suppress the evidence of the shotgun. 39
In reasoning that the shotgun was properly admitted into
evidence, the Eighth Circuit Court of Appeals noted the distinction
between police officers' criminal investigation functions and their
community caretaking functions; different standards for warrantless
searches apply to each." If a police officer enters a home to investigate
a crime, the probable cause standard applies; the officer must have
probable cause to believe a crime has been or is being committed, or
there are some exigent circumstances in play.4' But, if an officer enters a
home to engage in a community caretaking function, the reasonable
belief standard (a less exacting standard than probable cause) applies. 4 2
The Court then concluded there was ample evidence in the record
showing that the deputy entered the apartment as a community
caretaker to investigate a "possible emergency situation" and that
Quezada never denied the existence of such a situation.
ii.
Sixth Circuit
The Sixth Circuit Court of Appeals found that a community
caretaking search is lawful because the officer's reason for entry in such
a search is unrelated to a criminal investigation and therefore, the
Fourth Amendment's warrant requirement is not as directly involved. 4
In United States v. Rohrig, police responded to neighbors' complaints of
loud noise coming from the defendant's home; after the officers
knocked repeatedly, they entered the home through the open back
door.45 Once inside, the officers went to the defendant's basement
(thinking the music was coming from there) and found a marijuanagrowing operation.4 The police officers found the defendant, who
eventually signed a consent form authorizing the officers to search his
home, after which the police recovered marijuana plants and a sawedoff shotgun from the premises. Once the defendant was charged with
possession of marijuana with intent to distribute and possession of an
Id. at 1007.
Id.
41 Id.
0
42 Id. at 10 7 (citingMincey v. Arizona, 437 U.S. 385, 392-93 (1978)).
43 Id. at 1008.
44 United States v. Rohrig, 98 F.3d 1506, 1523 (6th Cir. 1996).
45 Id. at 1509.
46 Id.
47 Id. at 1509-10.
39
40
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unregistered shotgun, he moved to suppress the drugs and gun, arguing
that the officers' entry violated his Fourth Amendment rights." The
court viewed the fact that the police were not investigating a crime as
highly important and reasoned that the Fourth Amendment's Warrant
Requirement clause "is implicated to a lesser degree when police
officers act in their roles as 'community caretakers."' 9 The court thus
determined, "[h]aving found that an important 'community caretaking'
interest motivated the officers' entry in this case, we conclude that their
failure to obtain a warrant does not render that entry unlawful."so
iii.
Fourth Circuit
Similar to the Sixth Circuit's reasoning, the Fourth Circuit Court
of Appeals also found the distinction between community caretaking
activities and activities focused on investigating a suspected crime to be
crucial." In Phillps v. Peddle, police officers went to the plaintiff's
(Phillips) home to serve him with a subpoena ordering Phillips to testify
in an ongoing federal criminal investigation.5 2 Phillips had told the lead
detective that he would be home at the time the officers arrived, which
is why after the officers knocked to no answer and saw a car nearby
that didn't belong to Phillips, they entered his house.53 After finding
Phillips inside, they served him the subpoena and left shortly after.
Phillips then brought a 51983 action 5 against the officers, alleging that
his Fourth Amendment rights were violated by the officers' warrantless
entry into his home.s" After reviewing cases from the Virginia Court of
Appeals and recognizing that there had not been a definitive rule set
regarding warrantless searches under the community caretaking
doctrine, the court granted the police officer in question qualified
immunity in the situation17
48 Id. at 1510.
49 Id. at
1523.
51
Id. at 1523.
Phillips v. Peddle, 7 F. App'x 175,179 (4th Cir. 2001).
52
Id. at 177.
53
Id.
54
Id.
50
42 U.S.C. § 1983 (1996) (commonly referred to as a "g 1983" action, this statute allows
citizens to bring private actions against the Government's violations of constitutional civil
rights).
55
Pbillips, 7 F. App'x at 177.
57 Id. at 180.
56
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COMMUNITY CARETAKING
241
While the Fourth Circuit Court of Appeals found the community
caretaking function important, it also went on to reason that the
exception is not an open license for police to conduct warrantless
searches whenever they find some reason for entry other than criminal
investigation." Importantly, the Court clarified that the community
caretaking exception is distinct from the other warrant requirement
exceptions:
Nonetheless, as a doctrinal matter, the two exceptions are not the
same. The community caretaking doctrine requires a court to look at
the function performed by a police officer, while the emergency
exception requires an analysis of the circumstances to determine
whether an emergency requiring immediate action existed. Thus, as
the district court noted, the doctrines have different "intellectual
underpinning[s]."'
The Fourth Circuit's statements here help clarify that the
community caretaking and emergency aid exception doctrines, while
interrelated, are not interchangeable and courts should not treat them
identically when applying either. When an emergency occurs, the
emergency circumstances may supply the basis for a police officer to
engage in a community caretaking function, but that is not always the
case.6 For example, perhaps an emergency occurs, and an officer enters
a home in order to deal with the emergency. She enters the home
because of the emergency and since she is not investigating a crime, she
is also engaged in community caretaking functions. The emergency aid
exception, however, would be the proper doctrine to apply in these
circumstances and not the community caretaking exception. That is
because the emergency circumstances and not the community caretaking
function, is the impetus for the warrantless entry into the home. In
emergency aid scenarios, the officer enters with specific knowledge of
circumstances indicative of a presently occurring emergency that
requires her immediate assistance. In a community caretaking scenanio,
on the other hand, the officer does not have specific knowledge that
the situation rises to the level of an emergency requiring her immediak
assistance.
58 Hunsberger v. Wood, 570 F.3d 546, 554 (4th Cir. 2009).
s9
Id.
60
Hunsberger v. Wood, 564 F. Supp. 2d 559, 567 (W.D. Va. 2008) ev'd and rewandea 570
F.3d 546 (4th Cir. 2009).
CARDOZO PUB. LAW, POLICY & ETHICS J.
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B.
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CircuitCourts that Limit the Community CaretakerException to
Automobiles
i.
Third Circuit
The Third Circuit Court of Appeals held that the community
caretaking exception does not extend to the warrantless searches of
homes. 6 ' In Ray v. Townshtp of Warren, a mother went to her husband's
home to pick up their daughter for a court-ordered visitation. 62 When
she arrived she saw a man who appeared to be her husband and, after
repeatedly ringing the bell and knocking without anyone answering, she
called the police.63 When the police came, Mrs. Ray told them she was
concerned for the safety of her daughter. After they knocked to no
response, they entered the premises through an ajar, unlocked door and
found Mr. Ray's father, who had been sleeping."' After the police
searched the home and did not find Mr. Ray or the daughter, they
received a call informing them that someone had contacted Mr. Ray,
who was bringing his daughter to the precinct from another location. 65
Ray then filed a §1983 action against the officers, township, and police
department based on the allegedly unconstitutional search of his
home.66 The Third Circuit held that the community caretaking
exception did not apply to homes because it found that the Supreme
Court's ruling in Cady was expressly based on the distinction between
automobiles and homes in the context of searches. Much of the
interaction between police officers and automobiles occurs not as a
result of possible violations of criminal statutes, and thus involves the
officers taking part in their community caretaking functions." The
Third Circuit also came to its holding because of its view that the home
holds a special sanctity, "embedded in our tradition since the origins of
the Republic," and that the primary purpose of the Fourth Amendment
62
Ray v. Twp. of Warren, 626 F.3d 170, 177 (3d Cir. 2010).
Id. at 171.
63
Id.
64
Id. at 172-73.
65
Id.
61
Id. at 173.
Id. at 175 ("The [Supreme] Court expressly distinguished automobile searches from
searches of a home . . . That distinction recognizes that the sanctity of the home 'has been
embedded in our tradition since the origins of the Republic.").
66
67
68
Id.
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is guarding against home entry.'
ii.
Seventh Circuit
Similarly, the Seventh Circuit Court of Appeals declined to expand
the community caretaking exception to the search of homes or
residences." In United States v. Pichany, police officers entered the
defendant's warehouse while investigating the burglary of another
nearby warehouse, whose owner had reported a robbery." Upon
entering and investigating the defendant's warehouse, the officers
discovered stolen property.7 2 The counsel for the officers argued that
their warrantless search was justified under the community caretaking
exception. But the Court refused to expand the exception outside of
the limited scope of the warrantless search of automobiles. 74 The Court
noted two premises behind the Cady decision that indicated its holding
should be limited to automobiles: (1) that the search of private property
without consent is unreasonable unless authorized by a valid search
warrant and (2) the Supreme Court intended the previous premise to
apply in all circumstances except for certain carefully defined classes of
cases (including automobile searches)." Because only specifically
defined classes of cases are exempt from the presumption that a
warrantless search is unreasonable, and the Supreme Court did not
spefically hold that community caretaking searches of homes were part
of such a defined class, the Seventh Circuit reasoned that the exception
should not apply to home searches." From this line of thinking, the
Court concluded that the "[Supreme] Court intended to confine the
holding to the automobile exception and to foreclose an expansive
construction of the decision allowing warrantless searches of private
homes or businesses."77 Therefore all of the evidence obtained without
a warrant at the defendant's warehouse was suppressed
69
70
Id. (quoting Payton v. New York, 445 US. 573,601 (1980))
United States v. Pichany, 687 F2d 204,208 (7th Cit. 1982).
.
7' Id. at 20 6
72
Id.
7
Id. at 207.
.
74 Id. at 2 0 8
7 Id.
76
Id.
.
n Id. at 20 9
78
Id.
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iii.
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Ninth Circuit
The Ninth Circuit also limited the community caretaking
exception to the search of automobiles in United Staks v. Erickson.9 In
Erickson, police officers were called to investigate a robbery at the
defendant's home while the defendant was not present. One of the
officers lifted a piece of black plastic sheeting covering a window in
order to determine if the residence had in fact been burglarized.80 After
he opened the sheet and looked into the open window that it covered,
the officer saw a number of marijuana plants inside the defendant's
residence; based upon this discovery of marijuana, the police obtained a
search warrant.' The defendant then moved to suppress the evidence
found as a result of the second search, arguing that the initial search
violated his Fourth Amendment rights. 2 The state argued that the first
search of the defendant's home was reasonable under the community
caretaking exception because the officer's action of lifting up the black
plastic sheet was done in order to protect the residents inside, and not
out of any investigatory function." The Ninth Circuit, however, granted
the defendant's motion to suppress and found that the search was
unreasonable.' Like the Seventh Circuit, this Court believed there was
an important distinction between the search of an automobile versus
the search of a home.s Police already interacted with automobiles as
part of their community caretaking function very frequently, and
because of this frequency of contact it was reasonable that people
would have lower expectations of privacy with respect to their
automobile than with respect to one's home.
C.
The Firstand Second Grcuits and the Community CaretakingDoctrine
The First and Second Circuit Courts of Appeals have not
definitively ruled on the applicability of the community caretaker
exception to the search of homes. The Second Circuit, when
7
991 F.2d 529, 532 (9th Gr. 1993).
80
Id. at 530.
81 Id.
82
Id
83
Id. at 531.
Id. at 532
Id.
Id.
See MacDonald v. Town of Eastham, 745 F.3d 8, 13 (1st Cir. 2014) ('This court has not
84
85
86
87
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addressing the community caretaking exception, has almost exclusively
applied the exception to the warrantless search of vehicles." Further,
when the exception has been discussed, many courts seem to apply it or
understand it in a variety of different ways, with no clarity as to whether
it is a distinct exception to the warrant requirement, or to what
circumstances it may apply.
For example, in the New York state case of People v. Molnar, after a
neighbor alerted police to a strong odor coming from the defendant's
apartment, police entered the apartment and found a decomposing
body in defendant's closet.89 At the Supreme Court level, the Court
determined that no warrant was required to search the premises
because the police entered the apartment as community caretakers and
the situation they faced upon entry was an emergency.9 But then the
Appellate Division affirmed this holding solely based on the emergency
exception, without any mention whatsoever of the police officers'
community caretaking functions.9' Finally, the Court of Appeals
sustained the entry based on the emergency exception while also
mentioning the importance of police officers' community caretaking
functions. 92
The district court level case, Montane. v. City of Milford, seems to
reject the community caretaking exception as being distinct from the
emergency aid or exigent circumstances exceptions: "It has also long
been clearly established that absent emergency or exigent
circumstances, the Fourth Amendment prohibits warrantless,
nonconsensual entries by a law-enforcement officer, even when he is
engaged in a community-caretaking function . . . .'"3 The different
treatment of the community caretaking exception is confusing both
from a doctrinal perspective on the part of courts and practitioners, and
also leaves law enforcement officers with little guidance as to when the
decided whether the community caretaking exception applies to police activities involving a
person's home.'); see also Gombert v. Lynch, 541 F. Supp. 2d 492, 498 n.6 (D. Conn. 2008)
("Most of the cases the court has found regarding this community caretaking function concern
vehicles and their impoundments. Indeed.. .the Second Circuit has not addressed this issue
[community caretaking as applied to searches of homes]....').
88 Gombert, 541 F. Supp. 2d at 498.
89 98 N.Y2d 328,330 (2002).
90 Id.
91 People v. Molnar, 288 A.D.2d 911, 912 (4th Dep't 2001), ffe4 98 N.Y.2d 328 (2002).
92 Molnar, 98 N.Y2d at 330, 331.
93 706 F. Supp. 2d 222, 234-35 (D. Conn. 2010), rev'd and remankd sub nom, Montanez v.
Sharoh, 444 F. App'x 484 (2d Cit. 2011).
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exception may apply in everyday situations.
Ill.
BALANCING THE IMPORTANCE OF COMMUNITY CARETAKER
FUNCTIONS AND FOURTH AMENDMENT PRIVACY CONCERNS
A.
Staning Pointsfrom Oerjunsdiction
The importance of the community caretaking function does not
end just because a situation does not reach the level of immediacy
required to be an emergency. While police officers face emergency
situations more routinely than the general public, their community
caretaking function is arguably an even more ever-present aspect of
their profession, making it such that:
[T]he community caretaking function of the police is a necessary
one in our society . . . Constitutional guarantees of privacy and
sanctions against their transgression do not exist in a vacuum but
must yield to paramount concerns for human life and the legitimate
need of society to protect and preserve life ... .9
Some balance must be struck between the importance of the
constitutional concerns at stake in the context of the home, and the
practical necessity of crucial community caretaking functions. Two state
courts have recognized the importance of the community caretaking
function in the context of entries into the home and have crafted
pragmatic solutions of varying satisfaction to Fourth Amendment
related problems: Oregon and Utah in State v. Bridewell and Provo Gty v.
Warden, respectively."
One approach that acknowledges the importance of community
caretaker functions for the public, yet also recognizes the difficulty of
reconciling those functions with the Fourth Amendment is the Utah
Court of Appeals' formulation in Provo City v. Warden. While that case
dealt with a community caretaker search in the automobile context, it
still serves as a useful jumping-off point to begin crafting an
accommodation of community caretaking functions to the home search
context. The Provo Court recognized that there are certain instances
when a community caretaker function would be 'legitimate" -
that is,
94 Statev. DeMarco, 88 A3d 491, 509-10 (Conn. 2014).
9 See State v. Bridewell, 759 P2d 1054, 1059-60 (Or. 1988); Provo City v. Warden, 844
P.2d 360,365 (Utah Ct. App. 1992), afd, 875 P2d 557 (Utah 1994).
COMMUNITY CA RETAKING
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not a pretext for a criminal investigation, but arising from a good faith
concern for life or property - yet "unreasonable" under the Fourth
Amendment:
We also note that stops which are legitimate exercises of police
community caretaker responsibilities, but which are not
"reasonable" under the Fourth Amendment, may result in
application of the exclusionary rule, while still achieving the
objectives of community caretaking. This appears to be a legitimate
means of encouraging genuine police caretaking functions while
deterring bogus or pretextual police activities.
So while the search may be based upon "legitimate" community
caretaking functions, it is also unreasonable under the Fourth
Amendment (and thus unconstitutional), meaning any evidence found
as a result of the search would be excluded at trial.97
The combination of a search being "legitimate" yet
"unreasonable" creates the odd situation, however, of a court
essentially winking their acknowledgment of the importance of
community caretaking searches at police officers while also denying
such a search's constitutionality and excluding any evidence found as a
result. In crafting such an exclusionary rule, the difficulty lies in that
"[t]he exclusionary rule... cannot properly be invoked to exclude the
products of legitimate police investigative techniques on the ground
that much conduct which is closely similar involves unwarranted
intrusions upon constitutional protections."" Generally, if a search is
found to be reasonable under the Fourth Amendment, then all
evidence found as a result of that search - regardless of whether that
evidence is related to the reason for entry - is permissible as well." If
an exclusionary rule were to be adopted, then certain evidence (related
to the reason for entry) found under a reasonable community
caretaking function would have to be excluded.
The Oregon Supreme Court took another approach when it stated
that in situations not involving criminal investigation, but that also do
not fit within the emergency or exigent circumstances exceptions, "law
96
Provo City, 844 P.2d at 365.
97 Id.
98 Terry v. Ohio, 392 U.S. 1, 13 (1968).
99 See gnerally Dimino, supra note 30, at 1558 ("Generally speaking, reasonable searches are
constitutional and give rise to no issue of remedy. Unreasonable searches are unconstitutional
and usually result in exclusion of evidence found during the unreasonable search.").
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enforcement officers, like private individuals, also may enter to render
emergency assistance. In the latter situation, however, incriminating
evidence arising from the intrusion by law enforcement officers must
be suppressed."'" In a footnote, the Court went on to say, "Politically
accountable bodies might provide statutory or other authority for
exercising the type of community caretaker function here
contemplated."' 1
And indeed, the State of Oregon went on to codify the authority
of police to engage in community caretaker functions as follows:
(1) Except as otherwise expressly prohibited by law, any peace
officer is authorized to perform community caretaking functions.
(2) As used in this section, "community caretaking functions"
means any lawful acts that are inherent in the duty of the peace
officer to serve and protect the public. "Community caretaking
functions" includes, but is not limited to:
(a) The right to enter or remain upon the premises of another if it
reasonably appears to be necessary to:
(A) Prevent serious harm to any person or property;
(B) Render aid to injured or ill persons; or
(C) Locate missing person. 102
The Oregon statute provides an interesting example of the
recognition of the practical necessity of the community caretaker
function and the importance that function plays in the public
perception. But following its codification, it is not clear what practical
effect the statute has had on community caretaking searches and their
legitimacyORS 133.033 does not independently establish an exception to the
warrant requirement. Rather, it provides legislative authorization for
(among other things) a particular class of searches, subject to many
of the same constitutional constraints that operate to limit other
searches, including the warrant requirement. A lawful community
caretaking search, in other words, must first be within the universe
of police action described in ORS 133.033, and then it must also
"fall within one of the constitutional exceptions to the warrant
100 Bridenell 306 at 1060.
101 Id. at n.6.
102 OR. REV. STAT.
§ 130.033 (2011).
CO MM UNITY CARETAKING
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requirement."
249
1 03
This interpretation of the statute seems doctrinally and
theoretically unsatisfying and ironically, may result in the same situation
we are left with from Provo. In Provo, the result was that a search might
be "legitimate" yet "unreasonable" per the requirements of the Fourth
Amendment, leaving any evidence found because of the search
inadmissible. Similarly, under the Oregon statute, some home entries
are statutorily "authorized" by ORS §133.033 yet may not fall within
the ambit of one of the exceptions to the warrant requirement, thus
allowing for the possibility that some evidence might also be excluded
from trial.10 It is not clear what function the Oregon statute has played
in relation to creating new situations where an officer's entry into a
home would become lawful because of the statute, where it previously
would not have been. In fact, numerous Oregon cases have gone on to
say that the statute does not serve to create an exception to the warrant
requirement, and that such an entry must still be justified under the
existing emergency aid exception to the warrant requirement.os A
reading of the cases leads one to conclude that the outcome appears to
be the same as would have occurred without the statute: if evidence is
found as part of a search that is unlawful because it is warrantless and
does not fall within an already existing exception to the Fourth
Amendment, then it will be inadmissible.'06
Despite their shortcomings, the Oregon statute and the Provo
exclusionary rule nonetheless provide useful starting points to build a
more pragmatic framework for addressing Fourth Amendment
concerns while acknowledging the practical importance of community
caretaker functions.
103 State v. Martin, 193 P.3d 993, 997 (Or. Ct. App. 2008).
104 Id.; see also Provo City, 844 P2d at 365.
105 See State v. Lange, 329 P.3d 797, 804 (Or. Ct. App. 2014) ("That [OR 133.0331 statute,
therefore, does not create an independent exception to the warrant requirement'); Sivik v.
Driver & Motor Vehicle Servs. Div., 231 P3d 1177, 1179 (Or. Ct. App. 2010) ('The
community caretaking statute is not an exception to the warrant requirement.'); State v. Snyder,
206 P3d 1083, 1087 (Or. Ct. App. 2009) ("[A]lthough the statute authorizes police entries into
homes and other premises, it does not constitute an exception to the warrant requirement ...
.'); Marin, 193 P.3d at 997 ("ORS 133.033 does not independently establish an exception to the
warrant requirement").
106 See State v. Chambers, 203 P.3d 337, 341 (Or. Ct App. 2009); Snyder, 206 P.3d at 1086;
State v. Torres, 118 P.3d 268 (Or. Ct App. 2005).
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Craftinga PragmaticSolution: Adopting a Modfied Mitchell Test
Because of the practical reality that community caretaker functions
are important aspects of police-work that the public expects law
enforcement to perform, some sort of compromise must be attained to
allow police to execute them. This Note argues that states in the First
and Second Circuits should consider adopting a modified Mitchell test
and prophylactic exclusionary rule for community caretaking searches,
as well as consider codifying the community caretaker function in
statutory form to explicitly include the exclusionary rule.
The existing Mitchell test for the emergency aid exception can be
easily modified to determine when a community caretaking entry would
be appropriate. The Mitchell test already provides a suitable framework
with which to determine the appropriateness of community caretaking
exceptions. 7 Only the first and third prongs of the Mitchell test would
need to be modified in order to find an appropriate way to apply the
community caretaking exception:
(1) The police must have reasonable grounds to believe that there is
. . . [a community caretaking situation] at hand and .
.
. [a] need for
their assistance for the protection of life or property.
(2) The search must not be primarily motivated by intent to arrest
and seize evidence.
(3) There must be some reasonable basis, approximating probable
cause, to associate the . . . [community caretaking situation] with the
area or place to be searched.'
The first and third prongs have been modified to remove the
existing emergency/immediacy requirements, while leaving the
requirement that community caretaking searches only be performed
"for the protection of life or property."09 Therefore, while Mitchell
limited the application of the emergency aid exception only to
emergencies (read by this Note as requiring immediacy), a modified
Mitchell test would allow for the community caretaking exception to be
reasonable in other situations. The modification creates a framework to
enable the determination that a search under the community caretaking
107
See People v. Mitchell, 39 N.Y.2d 173, 177-78 (1976).
108
Id.
109 Id. (the modification replaces the word "emergency" with "situation," in order to address
the fact that immediacy would not be a necessity factor for a reasonable community caretaking
search)
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251
doctrine was reasonable and removes some of the ambiguity the
doctrine currently creates.
C.
Rethinking the Exdusionary Rule in the Context of Community
Caretaking:A PragmaicCompmmise
In addition to the modified Mitchell test, a second layer of
protection against unconstitutionally unreasonable searches would be
added by adopting an exclusionary evidence rule, as has been proposed
by some scholars."o The Circuits that have limited the community
caretaker exception to the search of automobiles have focused on the
intent of the original Cady Court and the higher sanctity of protection
the Fourth Amendment affords the home."' But is the interest at stake
when a police officer engages in a community caretaking function
different if it is outside the context of an automobile? Constitutional
and privacy concerns are indeed heightened in the home context, but
the importance of the community caretaker function does not
disappear simply because a police officer is no longer searching a car.
While the constitutional concerns may increase, the necessity of
community caretaking functions does not decrease. To address the
heightened constitutional concerns, yet also allow for community
caretaking functions to take place, a prophylactic exclusionary rule
should be adopted for community caretaking searches.
Reasonableness is the ultimate standard for the Fourth
Amendment." 2 This standard is one protection against improper
intrusion into the sanctity of the home and Fourth Amendment rights
of the homeowner. The reasonableness standard is best defined as one
in which:
Given the known facts, would a prudent and reasonable officer have
perceived a need to act in the proper discharge of his or her
community caretaking functions? . . . "in determining whether the
officer acted reasonably, due weight must be given not to his
unparticularized suspicions or 'hunches,' but to the reasonable
inferences which he is entitled to draw from the facts in the light of
his experience; in other words, he must be able to point to specific
110 See WAYNE R. LAFAVE, SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT
§10.1(c) (5th ed. 2014) [hereinafter SEARC I& SEIZURE].
I" See supra notes 61-87 and accompanying text.
112 Brigham City v. Stuart, 547 U.S. 398, 403 (2006.
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CA RDOZO PUB. LAW, POLICY & ETHICSJ.
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and articulable facts from which he concluded that his action was
necessary."113
While the reasonableness standard is one form of protection
against unreasonable or pretextual searches and seizures, if the
community caretaker exception is extended to home searches, the
probability of unreasonable or pretextual searches may in fact increase.
This is so because the community caretaking exception is admittedly a
search practice that may lend itself to "a high risk of undetectable
subterfuge."11 4 Police officers may be tempted to use community
caretaking as a false pretext for conducting a home search when they
are really motivated by the desire to investigate a suspected crime. Or
the community caretaking function may simply become overused by
police, who may find too many reasons to conduct such searches that
go beyond the appropriate. Therefore, the additional safeguard of a
prophylactic exclusionary rule for evidence found as a result of
community caretaking searches should be created.
The exclusionary rule is one of the primary ways in which courts
implement the Fourth Amendment's "right of the people to be secure
in their persons, houses, papers, and effects, against unreasonable
searches and seizures.""' But the way in which the nature of the rule
has been viewed has changed, some courts view it as a remedy for past
action whereas some courts view it as deterrent against future
unconstitutional conduct
The Mapp Court viewed the exclusionary rule as constitutionally
required whenever evidence is obtained in an unconstitutional
manner." 6 However, the Supreme Court later stated that it no longer
viewed the exclusionary rule as a constitutional requirement or right on
the part of an individual, but as a "judicially created remedy designed to
safeguard Fourth Amendment rights generally through its deterrent
effect on future unlawful police conduct, rather than a personal
constitutional right of the party aggrieved . .. ""v The Calandra Court
"3
People v. Ray, 981 P.2d 928, 936-37 (Cal. 1999) (internal citations omitted).
114 SEARCH & SmZURE, supra note 110.
"s U.S. CONST. amend. IV; see United States v. Calandra, 414 U.S. 338, 347 (1974) ('The
exclusionary rule was adopted to effectuate the Fourth Amendment right of all citizens 'to be
secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures'...').
116 Mapp v. Ohio, 367 U.S. 643, 655 (1961).
"7 Calandra, 414 U.S. at 348.
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viewed the exclusionary rule as a remedial device, whose application
"has been restricted to those areas where its remedial objectives are
thought most efficaciously served."118 In viewing the exclusionary rule
in such a light, the Court introduced a sort of balancing test to weigh
the "potential damage to the role and functions of the grand jury"
against the deterrent effect sought to be achieved by applying the rule
to grand jury proceedings." 9
It is reasonable for the public to expect that the police engage in
community caretaking functions even without an "imminent"
emergency that requires the police to aid someone in distress right at
that exact moment. Many situations exist in which the "imminence"
requirement of the emergency circumstances exception does not exist,
yet still call for the police to engage in activity to protect the public
welfare.1 20 The existence of situations that fall short of being true
emergencies (and thus do not fall within the emergency exception), yet
still call for police to engage in the community caretaking functions the
public expects, calls for a workable solution. A solution must take into
account the practical reality that such situations exist and are important,
yet also stay true to the reasoning behind Fourth Amendment concerns,
as well as the logic of when the exclusionary rule has been applied in
other situations.
One of the major purposes of the exclusionary rule is to deter and
prevent unreasonable searches and seizures.121 Alowing for community
caretaking searches may increase the possibility of police officers using
the community caretaking function as a false pretext when, in reality,
they are primarily motivated by the desire to investigate suspected
criminal activity. For example, a police officer may use the false pretext
118
Id.
"9 Id. at 350-51.
120 See State v. Gocken, 857 P2d 1074, 1080 (Wash. Ct. App. 1993) ("Similarly, the police
may be required to perform a warrantless search, not as a response to an immediate emergency,
but as part of ther function of protecting and assisting the public.'). See generally United States
v. Erickson, 991 F.2d 529, 531 (9th Cir. 1993) ("the societal role played by local police officers
extends well beyond their criminal enforcement activities.'); United States v. RodriguezMorales, 929 F2d 780, 784-85 (1st Cir. 1991) (police officers are "expected to aid those in
distress, combat actual hazards, prevent potential hazards from materializing, and provide an
infinite variety of services to preserve and protect community safety. Recognition of this
multifaceted role led to the Court's coinage of the 'community caretaking' label .. . .').
121 Elkins v. United States, 364 U.S. 206, 217 (1960) ("[The exclusionary rule's] purpose is to
deter-to compel respect for the constitutional guaranty in the only effectively available wayby removing the incentive to disregard it.').
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CARDOZO PUB. LAW, POLICY & ETHICS J.
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of a community caretaking "welfare check" or loud music as pretexts
for investigation of suspected drug trafficking or possession of illegal
firearms. And because of the increased probability of such false
pretextual use of the community caretaking search, an "exclusionary
rule of this type would be justified under the Fourth Amendment if the
risk of undetectable subterfuge were substantial."'2 Further, without
such an exclusionary rule, public perception of the police may shift
dramatically from expecting them to engage in genuine community
caretaking activities, to suspicion of police as using community
caretaking as a pretext to investigate crimes.
The Supreme Court has not required the exclusion of evidence
obtained by searches when the search was reasonable.'" However,
practical concerns about the legitimacy of community caretaking
searches, combined with the importance of community caretaking
activities leave a problem concerning evidence obtained as a result of a
community caretaking search Generally if a warrantless search has
been conducted without constitutional violation (and thus is
reasonable), any evidence in plain view of the police officers can be
admitted to court; however, if the evidence was obtained during an
unconstitutional search of a home, then the evidence may not be
admitted.1 24
While doctrinally true that a "search is either reasonable or
unreasonable,"'2 the practical reality is also such that false pretextual
community caretaking searches might occur, and there should be a
practical mechanism for limiting the negative fallout from such
instances. This would be accomplished by a prophylactic exclusionary
rule. One purpose of the exclusionary rule is to deter unreasonable
searches that violate the Fourth Amendment.'1 An exclusionary rule
for community caretaking searches specifically fulfills that purpose,
because it would deter police from performing unreasonable searches
that would use false community caretaking functions as a pretext for
criminal investigation.1 27 The reality of current expectations of police
Dimino, Jlpra note 30, at 1563.
See United States v. Payner, 447 U.S. 727, 735 (1980); Rakas v. Illinois, 439 US. 128, 133
(1978).
124 Minnesota v. Dickerson, 508 U.S. 366, 374-75 (1993).
125 See Dimino, supra note 30, at 1558.
126 See Mapp v. Ohio, 367 U.S. 643, 656 (1961).
127 Additionally, false pretextual caretaking searches are not just a theoretical possibility as
espoused by this Note. See People v. Morton, 114 Cal. App. 4th 1039, 1043 (2003) (indicating a
122
123
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and their roles in communities requires some sort of recognition that
the police must engage in these activities, yet also guard against
unreasonable searches. While applying an exclusionary rule in
community caretaking searches may result in some evidence found in
plain view being inadmissible, this is an appropriate compromise to
make it possible for the police to engage in activities the public expects
of them.
Combining a modified Mitchell test with prophylactic exclusionaty
rules for community caretaking searches makes sense at both a
theoretical level (in that the exclusion of evidence deters officers from
using community caretaking as a pretext for criminal investigation) and
also in terms of the practical realities that police officers face and the
public expects. The combination of the modified Mitchell test with
exclusionary rules also provides a practical framework for law
enforcement in the field. Such a practical framework is important
because:
[I]mplementation of the Fourth Amendment requires a set of rules
which are easily understood and applied: Fourth Amendment
doctrine, given force and effect by the exclusionary rule, is primarily
intended to regulate the police in their day-to-day activities and thus
ought to be expressed in terms that are readily applicable by the
police in the context of the law enforcement activities in which they
are necessarily engaged.128
The combination of a modified Mitchell test and prophylactic
exclusionary rules provide just such a set of rules which can be easily
understood and applied by police in their everyday activities. The
Mitchell test has been adopted by New York courts for searches
performed under emergency circumstances, and many other states have
adopted similar tests for such situations.1 2 If a police officer considers
the facts at hand in light of the modified Mitchell test and decides she
should enter for community caretaking reasons, then she also knows
that any evidence found in plain view as a result of that search (that is
situation where police got a tip on marijuana cultivation at defendant's nursery, then entered the
defendant's property ostensibly to determine whether theft vicims needed assistance, but really
intending to investigate the marijuana).
128 WAYNER. LAFAVEET AL., CRIMINALPROCEDURE, § 2 .9(g) (3d ed. 2014).
129 See Guererri v. State, 922 A2d 403, 406 (DeL 2007); State v. Ryon, 108 P.3d 1032, 1044
(N.M. 2005); State v. Jones, 947 P.2d 1030, 1036-37 (Kan. Ct. App. 1997); State v. Fisher, 686
P.2d 750, 760-61 (Ariz. 1984).
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unrelated to the community caretaking reason for entry) will be
inadmissible.
Some scholars would argue that applying the exclusionary rule
does not make sense in the community caretaking context because the
exclusionary rule should not apply to "legitimate exercises of policy
community caretaker responsibilities."' But applying the exclusionary
rule in this situation would not be aimed at the legiimate caretaker
responsibilities, but rather as a preventative deterrent against the
increased possibility that the community caretaking exception would be
used as a false pretext for illegimak criminal investigatory functions. If
the reason for entry is a community caretaking function, then the
reasonableness for that entry lies in the officer's desire to assist a
person in distress; any evidence found in plain view unrelated to the
community caretaking function would be inadmissible.
Others criticize the exclusionary rule as being inappropriate in the
case of community caretaking searches because it would be doctrinally
inconsistent, and similar to the "winking and nodding" approach of the
Provo Court that renders some searches "legitimate" yet
"unconstitutional""'3 That is, some would argue that if the community
caretaking reason for entry is constitutional (and therefore reasonable),
then any evidence found as a result should be admissible. The argument
is that a search is either reasonable or unreasonable and the Supreme
Court has found that any evidence found as a result of a reasonable
search to be admissible per the plain view rule.'32 Only unconstitutional
searches have been found to be unreasonable and subject to the
exclusionary rule.
The exclusionary rule in the community caretaking context does
not render an otherwise reasonable search unreasonable, rather the rule
serves as a deterrent against the heightened opportunity for
unreasonable, false pretextual searches that would use community
caretaking as "cover" for a criminal investigation. However theoretically
unsatisfying such a rule may be to scholars, the rule is attuned to the
practical realities faced by law enforcement as well as the possibility for
Matthew Bell, Fourth Amendwent Reasonablemss: Why Utah Courts Should Embrxe the
CommunityCaretaking-Exceptionto the WarrantRequirement, 10 BALTJ. CRIM. L. 3, 35 (2005).
131 Dimino, supra note 30, at 1558; see also Provo City v. Warden, 844 P2d 360, 365 (Utah Ct.
App. 1992), ffd, 875 P.2d 557 (Utah 1994).
132 Provo Ciy, 844 P2d at 365.
133 Megan Pauline Marinos, Breaking and Entering or Community Caretaking?A Solution to the
OverbroadExpanionof the Inventory Seairh,22 GEo. MASON U. Civ. RTs. L.J. 249, 291 (2012).
'30
2015]
COMMUNITY CARETAKING
257
abuse of discretion in the community caretaker context. Further, over
the years the Supreme Court has articulated multiple reasons for use of
the exclusionary rule. In Elkins v. United States the Court indeed asserted
the "imperative of judicial integrity" and the desire that the courts not
become "accomplices" in instances where police took unconstitutional
actions.1 3But the Court has also said that the exclusionary rule serves
the purpose of assuring the public that the government will not "profit
from its lawless behavior" and minimizes the risk of undermining the
35
Finally, the Elkins court also
public's trust in the government.s
recognized the practical reason that the rule serves as a deterrent: "Its
purpose is to deter-to compel respect for the constitutional guaranty
in the only qfecti)y available way--by removing the incentive to disregard
it."'3
The exclusionary rule as applied to the community caretaking
search effectively serves as a deterrent against the increased possibility
for unreasonable, false pretextual searches by the police and, in creating
that deterrent effect, prevents the public's trust in the government from
being undermined.
CONCLUSION
Police officers frequently engage in community caretaking
functions that are vital to maintaining public safety. Their role as
community caretakers is not limited only to situations that rise to the
level of emergencies requiring their immediate assistance. Many
situations call upon their acting as community caretakers, including
situations that take place inside the home. Because of the importance of
these situations, the community caretaking exception to the warrant
requirement should be recognized as applying to home searches.
Nevertheless, the exception does create the potential for abuse by law
enforcement who may seek to use false community caretaking pretexts
to enter the home, when in fact they are only motivated by a desire to
investigate a crime. Abuse of this sort could result in situations where
searches are in fact unreasonable and, therefore, unconstitutional The
First and Second Circuit Courts of Appeal should adopt the community
caretaking exception, along with an exclusionary rule limiting admissible
evidence found during such a search to evidence found in plain view,
134
Elkins v. United States, 364 U.S. 206, 223 (1960).
135 United States v. Calandra, 414 U.S. 338, 357 (1974).
136
Elkins, 364 U.S. at 217 (emphasis added).
258
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[Vol. 14:229
related to the community caretaking reason for entry. Adopting the
community caretaking exception with such an exclusionary rule
balances the potential for abuse the exception creates, while still
recognizing the practical and ongoing need for police to engage in their
important community caretaking functions.