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msu_grad_121 02-13-2014 15:58

4th Amendment case law
 
Hey everyone, I need a source for 4th Amendment case law regarding warrantless searches of a home. Community caretaker more specifically. Any help you can offer would be appreciated. Thanks!

DaBigBR 02-13-2014 18:28

Lots of authority in here:

http://www.aele.org/law/2011all01/2011-01MLJ101.pdf

But I don't know that you're going to like what you read. The gist of it is that the community caretaking function established in Cady applies only to vehicles according to most courts. Several cases were cited where officers were justified in entering a dwelling or other structure when there some significant exigent circumstances (such as seeing a pair of legs on the ground with a shotgun between them).

I think generally you're going to not find as much case law on the topic as you would in some other areas since a lot of these entries and searches are based upon plainly apparent exigent circumstances and often times there is no criminal charge. If you kick down grandma's door because you can see her lying unconscious on the living room floor, the odds there being any criminal charges and against the family filing a civil suit for the damages.

Can you provide any more detail that might allow us to refine the search?

msu_grad_121 02-13-2014 18:55

Yeah I was reading that. Blah...

txleapd 02-13-2014 19:07

http://www.caselaw4cops.net


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tc215 02-13-2014 19:43

Here is an article in this months Police magazine. It is more on warrantless entries, and not searches, but it does have a section on community care taking.

http://www.policemag.com/channel/pat...ome-entry.aspx

Pwhfirefighter 02-13-2014 20:09

As a non-LEO, these articles makes some very informative reading and explains a lot.

msu_grad_121 02-13-2014 21:36

Quote:

Originally Posted by tc215 (Post 21009012)
Here is an article in this months Police magazine. It is more on warrantless entries, and not searches, but it does have a section on community care taking.

http://www.policemag.com/channel/pat...ome-entry.aspx

My apologies. I meant to type entry, and got silly and typed search instead. This seems to be anything but a clear cut issue, and I have been operating under the impression it was far more defined. Thanks everyone for your help. Feel free to keep em coming.

SKSman57 02-14-2014 03:36

There is a Circuit Split on this specific issue and various State Appellate Courts are all over the place on this.

This should be of some help.

Cases that apply Community Caretaker Exception to homes:

State v. Deneui, 2009 SD 99, 775 N.W.2d 221, 2009 S.D. LEXIS 175 (S.D. 2009).

United States v. Nord, 586 F.2d 1288, 1978 U.S. App. LEXIS 7661 (8th Cir. Minn. 1978).

State v. Pinkard, 2010 WI 81, 327 Wis. 2d 346, 785 N.W.2d 592, 2010 Wisc. LEXIS 167 (Wis. 2010).

United States v. York, 895 F.2d 1026, 1029-30 (5th Cir.1990).

United States v. Rohrig, 98 F.3d 1506, 1514-15 (6th Cir.1996).

United States v. Quezada, 448 F.3d 1005, 1008 (8th Cir.2006).

Cases which decline to apply the Community Caretaker Exception to homes:

Ray v. Twp. of Warren, 626 F.3d 170, 2010 U.S. App. LEXIS 24043 (3d Cir. N.J. 2010).

United States v. Pichany, 687 F.2d 204, 207 (7th Cir.1982).

United States v. Erickson, 991 F.2d 529, 533 (9th Cir.1993).

United States v. Bute, 43 F.3d 531, 535 (10th Cir.1994).

msu_grad_121 02-14-2014 12:41

Wow, that's awesome. I should probably give some background on this whole thing. We had roll call training the other day which discussed a situation like this: you are dispatched to a house for a parking complaint. You arrive and see cars parked all jacked up. You attempt to make contact with the residents by knocking on the door. When you knock, the door swings open freely (they were very specific that you don't turn the handle and have no intention of opening it, it just opens when you knock) and no one answers when you announce your presence. You make entry to secure the home and smell Marijuana. You run into a resident and several friends in a back bedroom smoking up and they give up the weed as soon as you ask. You also have Marijuana and paraphernalia in plain sight. The question basically boils down to whether or not the entry was good or if the evidence will get tossed.

This of course created a divide between my shift, with both Sgts falling on opposite sides. I, as the most vocal debater, was tasked with researching the situation and getting back to the Sgt who disagrees with my position.

What says the brain trust?

DaBigBR 02-14-2014 14:01

I think the proper course of action is several loud announcements at the door. Failing that, you can close the door, which is a no-brainer. How far need you enter to close the door, though, and if you've been knocking and yelling for a few minutes, one would assume you can smell the marijuana from outside. Convincing a judge that it was necessary to enter beyond reaching an arm in to close the door and that the marijuana odor was not plainly apparent outside, but was just inside the threshold sounds like an uphill battle.

This gets even more complicated with the recent decision on dog sniffs on the curtilage and evaluating whether you could even be at the door (in this case I think you're 100% solid since the purpose of being at the door was not solely to conduct the sniff). The body of case law on the topic is clear that you can enter and secure a residence to obtain a search warrant if you can articulate that it will prevent the destruction of evidence, but what proof do you have anybody even knows, or reasonably should have known you were ever at their door?

There are a lot of variables here.

msu_grad_121 02-14-2014 14:22

I agree with you in theory, but my argument was that in practice, we enter homes to clear and secure them on a fairly regular basis. Since you would not be there in a law enforcement function initially, there is nothing preventing you from being at the home to begin with. Once you find the unsecured door, and announce your presence with negative response (I can only assume they mean you made an honest attempt to alert the residents to your presence), in my opinion, it changes from a parking complaint to a check for well being. Part of my reasoning is, espeically in this kind of weather, a door which can be opened in such a manner would indicate to me a burglary might have taken place. Therefore, to my thinking, entering the home to ensure it has not been broken into would be okay, at least, the way I see it.

The sticking point with the other Sgt seems to be whether our duty as a community caretaker is to just close the door over or to check the house for signs of burglary.

SKSman57 02-14-2014 14:32

Quote:

Originally Posted by msu_grad_121 (Post 21010641)
Wow, that's awesome. I should probably give some background on this whole thing. We had roll call training the other day which discussed a situation like this: you are dispatched to a house for a parking complaint. You arrive and see cars parked all jacked up. You attempt to make contact with the residents by knocking on the door. When you knock, the door swings open freely (they were very specific that you don't turn the handle and have no intention of opening it, it just opens when you knock) and no one answers when you announce your presence. You make entry to secure the home and smell Marijuana. You run into a resident and several friends in a back bedroom smoking up and they give up the weed as soon as you ask. You also have Marijuana and paraphernalia in plain sight. The question basically boils down to whether or not the entry was good or if the evidence will get tossed.

This of course created a divide between my shift, with both Sgts falling on opposite sides. I, as the most vocal debater, was tasked with researching the situation and getting back to the Sgt who disagrees with my position.

hat says the brain trust?

Factually, that sounds somewhat similar to State v. Vargas, 213 N.J. 301, 63 A.3d 175, 2013 N.J. LEXIS 203, 2013 WL 1104072 (N.J. 2013).

http://www.judiciary.state.nj.us/mcs...e_v_vargas.pdf

The Court in Vargas held that the Community Caretaker exception alone wasn't enough, there needed to be an objectively reasonable basis for believing that there was an emergency.

However, there really isn't a clear answer here due to the Circuit Split and wide range of case law here. (The N.J. Supreme Court is rather far-left and their reasoning wouldn't necessarily be persuasive in more Conservative jurisdictions.) This is an area that the Supreme Court probably needs to clarify.

msu_grad_121 02-14-2014 16:34

Quote:

Originally Posted by SKSman57 (Post 21010913)
Factually, that sounds somewhat similar to State v. Vargas, 213 N.J. 301, 63 A.3d 175, 2013 N.J. LEXIS 203, 2013 WL 1104072 (N.J. 2013).

http://www.judiciary.state.nj.us/mcs...e_v_vargas.pdf

The Court in Vargas held that the Community Caretaker exception alone wasn't enough, there needed to be an objectively reasonable basis for believing that there was an emergency.

However, there really isn't a clear answer here due to the Circuit Split and wide range of case law here. (The N.J. Supreme Court is rather far-left and their reasoning wouldn't necessarily be persuasive in more Conservative jurisdictions.) This is an area that the Supreme Court probably needs to clarify.

Ugh. Well that doesn't help my argument. Oh well, that'll learn me to keep my big mouth shut. Thanks!

ray9898 02-14-2014 21:53

Never heard much in the way of community caretaker when dealing with residential entries. I have been trained that exigent circumstances is what applies in situations regarding welfare concerns at a residence since it has the one of the highest protections of the 4th. That requires more than a simple complaint and curiosity. I need something objective to go on.

Of course that will mean we will miss some opportunities to help people or find crimes/deaths in a timely manner but that is the way it is. Think about it, even a simple 9-1-1 hang up from inside a residence isn't enough to really do anything with on its own.

merlynusn 02-15-2014 10:41

I'd say that it would depend on what the house looks like. If you knock and the door opens, that alone isn't an indicator of a burglary. Is the house ransacked? Is there damage to the door or doorframe? I would think a check of the outside would be more reasonable than searching the interior of the residence to check for a burglary. If you can smell the marijuana, and they don't know you're there, then no need to secure the residence. Just go get the warrant. I believe the courts have said that the small amount of weed that would be used personally prior to obtaining the warrant wouldn't justify securing the residence if the residents don't know you're there.

txleapd 02-15-2014 11:36

The following is some long standing case law...

Quote:

Wayne v. US, 318 f. 2d 205 (Court of Appeals DC Circuit, 1963)-Police, having a report of an unconscious person in a home, can force entry to check the welfare of the person as an exigent circumstance. Evidence found in plain view after entry is admissible.The Court stated, "Acting in response to reports of "dead bodies," the police may find the "bodies" to be common drunks, diabetics in shock, or distressed cardiac patients. But the business of policemen and firemen is to act, not to speculate or meditate on whether the report is correct. People could well die in emergencies if police tried to act with the calm deliberation associated with the judicial process. Even the apparently dead often are saved by swift police response."
Every case I've come across that deals with making entry based on community care taking has some wording about exigency created by the reasonable belief that someone could be in danger. It's not reasonable to make entry just because there is an unlocked, or even open, door. There has to be something else... A 911 hang up call, cry for help, someone visible (and unresponsive) laying inside, etc...

I don't see how a dispatched call about parking with an open door present would automatically fall into community care taking.

I think the best bet would have been to call from the door way, if no one answered then it probably would have been best to just shut the door. If you feel the need to make entry, just realize that anything you come across likely wouldn't hold up in court.

At least that's my 2 cents worth...



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txleapd 02-15-2014 11:37

FYI... That is on the front page of Case Law 4 Cops, along with 2 other cases concerning community care taking.

I highly suggest checking out the website in the link I posted earlier. It's a great resource, and we use it all the time.


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ray9898 02-15-2014 13:40

Quote:

Originally Posted by txleapd (Post 21013011)
The following is some long standing case law...



Every case I've come across that deals with making entry based on community care taking has some wording about exigency created by the reasonable belief that someone could be in danger. It's not reasonable to make entry just because there is an unlocked, or even open, door. There has to be something else... A 911 hang up call, cry for help, someone visible (and unresponsive) laying inside, etc...

I don't see how a dispatched call about parking with an open door present would automatically fall into community care taking.

I think the best bet would have been to call from the door way, if no one answered then it probably would have been best to just shut the door. If you feel the need to make entry, just realize that anything you come across likely wouldn't hold up in court.

At least that's my 2 cents worth...

100% agree. It is not illegal to leave your door unlocked, open or to not respond to someone knocking. There has to be something else to go along with it.

msu_grad_121 02-15-2014 14:27

Quote:

Originally Posted by txleapd (Post 21013011)
The following is some long standing case law...



Every case I've come across that deals with making entry based on community care taking has some wording about exigency created by the reasonable belief that someone could be in danger. It's not reasonable to make entry just because there is an unlocked, or even open, door. There has to be something else... A 911 hang up call, cry for help, someone visible (and unresponsive) laying inside, etc...

I don't see how a dispatched call about parking with an open door present would automatically fall into community care taking.

I think the best bet would have been to call from the door way, if no one answered then it probably would have been best to just shut the door. If you feel the need to make entry, just realize that anything you come across likely wouldn't hold up in court.

At least that's my 2 cents worth...



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Obviously I'm misunderstanding community caretaking, then. Everything which is being referenced about seeing bodies lying about or what have you would have fallen under exigent circumstances. I was always taught community caretaking was far less emergent and more mundane. It seems at least half my shift would agree with what you guys are saying, but obviously I have some case law to read.

DaBigBR 02-15-2014 15:30

Quote:

Originally Posted by msu_grad_121 (Post 21013348)
Obviously I'm misunderstanding community caretaking, then. Everything which is being referenced about seeing bodies lying about or what have you would have fallen under exigent circumstances. I was always taught community caretaking was far less emergent and more mundane. It seems at least half my shift would agree with what you guys are saying, but obviously I have some case law to read.

The problem is the level of protection afforded the home. Community caretaking type exceptions are easier to sell when regarding people operating vehicles on public highways. Not only is the expectation of privacy less, but the potential risk to the public from, say, a tired driver is greater.

Having the police tromp all through your house and looking in any place a person could be hiding, solely because a door is not secured, is not an exception that I think society is willing to accept.


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