Fourth Amendment Update: 'Community Caretaking' Narrowly Defined; 'Inevitable' Discovery No Excuse For Illegal Discovery

Here's a brief roundup of Fourth Amendment-related court decisions in which judges have pushed back against law enforcement's insistence that these warrantless searches were completely justifiable. The "community caretaking" aspect of law enforcement -- the part where the "protect" part of "protect and serve" gets a brief nod -- is often used as an excuse to perform a warrantless search, both before and after the fact. The underlying intent is honorable. If an officer sees a potentially stranded vehicle on the side of the road, he can approach the driver and attempt to render assistance. If an officer notices a broken window, he can approach the house or business and try to determine whether or not a burglary has occurred. Officers can also enter homes to render aid if they believe someone is in danger. All good things, but often abused to perform "plain sight" searches of property without a warrant. In Kansas, a judge had no sympathy for the state's argument that an officer's stop of a vehicle was permitted under its "community caretaking" guidelines. As the court pointed out, most of the aspects of the "caretaking" more closely resembled regular police business: the investigation of criminal activity.

Based on Officer Vogt’s testimony, the sheriff department’s community caretaking policy requires its officers to check on any vehicle that is either parked along the side of the road or abandoned for public safety. Moreover, if a vehicle is located in a rural area, as Morales’ vehicle was, officers are to make sure that the vehicle is not stolen or a part of some other crime that the officers might uncover by running the vehicle’s license tag. Because Morales’ vehicle was located in a rural area at 2:30 in the morning, it was readily apparent that Officer Vogt was operating under the second prong of the sheriff department’s formal community caretaking policy: to make sure that Morales’ vehicle was not stolen or was not a part of some other criminal activity. This position is supported by the fact that Officer Vogt had the dispatcher run Morales’ license plate tag immediately upon pulling in behind Morales’ vehicle.

When the driver is present in the vehicle, running the tag through law enforcement databases serves no "caretaking" function. The Sheriff's Department may consider it to be a key element of its public safety efforts, but the court doesn't.

As a result, the sheriff department’s community caretaking policy is not “‘totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.'” Grabauskas, 33 Kan. App. 2d at 214-15 (quoting Cady, 413 U.S. at 441). In fact, Officer Vogt testified that the detection of crime was the principle reason for running a license plate tag in a rural area. Obviously, this policy violates the legal principles of Grabauskas, Gonzales, and Marx.

Calling it one thing ("community caretaking") while doing another (running plates for stolen vehicle hits) doesn't magically turn an investigation into roadside assistance. The court cites none other than Abraham Lincoln in its rebuttal of the state's arguments.

“‘How many legs does a horse have?’ “‘Four,’ said the witness. “‘Right’, said Abe. “‘Now, if you call the tail a leg, how many legs does a horse have?’ “‘Five,’ answered the witness. “‘Nope,’ said Abe, ‘callin’ a tail a leg don’t make it a leg.'” Lamon v. McDonnell Douglas Corp., 19 Wash. App. 515, 534-35, 576 P.2d 426 (1978) (Andersen, J., dissenting). Thus, officers calling a stop a public safety stop does not make it so, especially when there is an expressed investigatory component to their stated community caretaking policy.

As we've noted here before, being in a vehicle does terrible things to your Fourth Amendment rights. A person's home, however, is still considered mostly unassailable in terms of Fourth Amendment protections. In this Florida case, bondsmen came across a grow operation while looking for a fugitive. They turned this info over to the police department. Rather than use this probable cause to obtain a warrant, the PD decided to search the house without one. Officers obtained a form of consent from the resident (coerced) and search the premises. When the evidence was challenged, the officers claimed they could have gotten a warrant, what with all the probable cause they had. On top of that, the government argued the grow operation w