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Media > Newsletters > Law Enforcement Bulletin > October 2014 > Search and Seizure (Community Caretaking Exception): State v. Barzacchini; State v. Hendrix, and Sta

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Search and Seizure (Community Caretaking Exception): State v. Barzacchini; State v. Hendrix, and State v. Leveck

Question: When is the community caretaking exception to a warrant applicable?
Quick Answer: Only when you have a reasonable, objective belief immediate assistance is needed to protect life or prevent serious injury.
State of Ohio v. Barzacchini, Fifth Appellate District, Stark County, Aug. 11, 2014
State of Ohio v. Hendrix, Ninth Appellate District, Summit County, Aug. 20, 2014
State of Ohio v. Leveck, Sixth Appellate District, Fulton County, Aug. 1, 2014
Facts in Barzacchini: An officer noticed Matthew Barzacchini driving with his window down, playing loud music, yelling, and turning with exaggerated arm movements. Because the officer believed an assault was occurring and could not see in the back compartment, he initiated a traffic stop. At that point, Barzacchini had not violated a traffic law or exhibited evidence of impaired driving or speeding. After the officer activated the overhead lights, Barzacchini committed a lane violation. He also failed to immediately stop, instead he pulled into a private driveway and attempted to get out of the car. The officer ordered him back into the vehicle. Upon doing so, he noted a strong odor of alcohol on Barzacchini’s breath, blood shot eyes, slurred speech, and delayed movements. Barzacchini explained that he was having a verbal argument with his wife on the phone. A field sobriety test was given and Barzacchini failed. He moved to suppress the OVI evidence, stating the officer did not have articulable suspicion of criminal activity to lawfully stop the vehicle. The officer claimed he made the stop under the community care taking exception.
Facts in Hendrix: After responding to a call that a garage door was left open for several days, police arrived on the scene to find nothing else out of the ordinary. Although they were aware of a rash of daytime burglaries in town, none had occurred in this neighborhood. The officers did a perimeter sweep of the home and found no signs of forced entry. The police then entered the home and found a marijuana grow operation in an upstairs bedroom. Andre Hendrix and Delisa Scott, residents of the home, were charged with possession, illegal cultivation, and trafficking marijuana. Hendrix and Scott filed a motion to suppress the evidence because police lacked a warrant. The officers argued they were acting under the community care taking exception.
Facts in Leveck: An officer responded to a noise complaint, and upon arrival observed loud music and voices. After knocking several times and announcing police presence, Mikeal Leveck opened the door. The officer recognized him from past drug arrests. He also saw numerous beer cans and a young female running toward the bedroom area. After the young female declined to come outside and believing crimes and destruction of evidence were occurring inside the apartment, the officer entered and found evidence of underage drinking. Leveck filed a motion to suppress the evidence. The officer argued he was acting under the community care taking exception.
Importance: In all of these cases, the judge found the stops unconstitutional.  Here’s why:
  • Barzacchini: The officer was not properly acting as a community caretaker because the only evidence of an assault was exaggerated arm movements and loud talking. The officer did not hear what was said or even see another person in the vehicle. Therefore, he was not justified in making the stop based on a generalized concern for safety because there were no actual signs of distress coming from the car.
  • Hendrick: The officers were called to the property because the garage door was open. No reports of suspicious activity were made. When officers walked around the house, nothing was unusual and they were unable to see inside the windows. The mail carrier told them the mail had not been picked up from the day before, but that it was not uncommon. Nothing based on the circumstances, viewed from an objective reasonable officer, would lead to the belief indicated that anyone in the house needed immediate aid. A mere possibility that someone may have needed help was not enough.
  • Leveck: The officer was concerned that underage drinking and drug use was occurring in the home, thereby creating an emergency situation. The court determined the circumstances would not give an objective reasonable officer the same concern. The fact a juvenile ran away after seeing the officer was not probable cause of underage drinking, even though alcohol was visible. Even if it did, the court determined the exception did not apply to misdemeanor crimes, like underage drinking.  Likewise, the officer’s knowledge that the suspect had prior drug arrests did not support his concern that the juvenile was fleeing to hide evidence of drugs.
When you engage in community caretaking, you are acting under a warrant exception. That exception only applies when there is an immediate need to protect life or prevent serious injury. While you don’t need ironclad proof of a serious or life-threatening event, there must be a reasonable and objective presumption that one exists, and it must be more than just a hunch.
Keep in mind: The test—a reasonable objective standard—means the court gets to dissect the situation after the fact. You, however, must make a decision within moments based on your knowledge and skill. The Ohio Supreme Court said, “[T]he 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 of the judicial process.” In other words, sometimes you may make a call that leads to the exclusion of evidence, but on the other hand, it could also save a life.
Another look: Consider the following examples of when the community caretaking/emergency aid exception did apply:
  • Prevention of suicide: In this case, officers received a report of an alleged armed and suicidal individual with an imminent plan to kill himself after arriving at the home of his soon-to-be ex-wife. Stopping a person on the street is considerably less intrusive than police entering the home, so the officers chose to perform a traffic stop to prevent the man from harming himself before he reached the home. The court found this was reasonable under the community-caretaking/emergency-aid exception to the Fourth Amendment warrant. State of Ohio v. Dunn, Ohio Supreme Court, Montgomery County, Mar. 15, 2012
  • Explosives: Police officers were justified under the community-caretaking exception to call the bomb squad during a search of a suspect’s home. They entered the home to check for intruders following an armed robbery. Once inside, the officers discovered bomb-making supplies. The officers had a reasonable belief that an immediate danger could exist and were justified in seizing the supplies without a warrant. State of Ohio v. Telshaw, Seventh Appellate District, Mahoning County, June 29, 2011
  • Missing child: After a juvenile was reported missing, police questioned a suspect who was the last person to see the child. Although the stop was consensual, the court determined that it also fell under community-caretaking because the officer was responding to a distress call rather than investigating a criminal complaint. The stop was justified because it permitted the officer to stop a key eyewitness before harm came to the child. United States v. Brown, Sixth Circ., Northern District Ohio, Jan. 6, 2012
More on Search and Seizure
Inventory search, search incident to arrest, or neither? After three separate calls are received about a suspicious individual and broken garage door, you drive to the neighborhood to find a suspect walking down the street matching the eyewitness’ description. You stop the suspect and arrest him, then search his vehicle, which is near the arrest location. You find a criminal tool used to break into the garage. The vehicle is then towed. Was the search of the vehicle proper? The court in Kozic said no. In this case, the vehicle could not be searched incident to arrest because the vehicle was not in the suspect’s immediate control, as he was not in or near the vehicle at the time of arrest. Additionally, the inventory search after tow was improper because there was no evidence the vehicle was lawfully impounded by the police. Only in a lawful impoundment can an inventory search be performed. The records and testimony did not prove the car was parked illegally, abandoned, or towed by police department policy. State of Ohio v. Jamie Kozic, Seventh Appellate District, Mahoning County, August 27, 2014
Meanwhile in California — Investigatory stop or arrest? A 911 call comes in that a man is shooting at passing cars. Near the scene is a man who matches the description of the suspect. With guns drawn you approach and apprehend him. Once you cuff and frisk him, you find a gun. The man is arrested, but you determine he is not the individual who was shooting at the cars. Was the seizure an investigatory stop or an arrest? The court in Edwards says investigatory stop. Even though the suspect was held at gun-point, it does not necessarily mean he was arrested. Here, Reginald Edwards matched the description of the shooter and could have been armed and dangerous; the officers had a legitimate safety concern that justified their on-the-spot decision to use more intrusive measures to stabilize the situation before investigating. Once stabilized, the investigation revealed Edwards was not the correct suspect and did have an illegal weapon. United States of America v. Reginald Edwards, Ninth Circuit, Cali., July 31, 2014