Exigent Circumstances - Part Two

by Charles Gillingham

There are occasions when officers are faced with circumstances that do not seem obviously criminal but rather involve helping the community, commonly known as the community caretaker function of law enforcement. This situation, such as the 911 hang up, the welfare check, the open door to the house or a wandering child in the neighborhood, may potentially lead officers to enter dwellings without a warrant or other recognized exception to the warrant requirement. It is important for officers to understand the "community caretaker" exception.

"Community Caretaker Exception"

Most courts recognize an exception to the warrant requirement and have termed it the community caretaker exception. This area of the law recognizes that officers are called by the public for a variety of reasons that have nothing to do with investigating or stopping criminal activity. Courts recognize that if there were restrictions as to what actions officers can perform in these circumstances there would be severe adverse consequences to citizens who need help. So in essence, the courts have recognized the community caretaker function as a form of exigent circumstances. Officers need to be aware that because the community caretaker situation usually does not involve the degree of danger as traditional exigent circumstances, any criminal activity detected and evidence gathered will only be upheld when officers use the least intrusive measures in the field.

Community Caretaker Searches

As a general statement, the community caretaker exception will not support a full blown search of a residence. Often, officers will be called out for a welfare check with an open front door. For officer safety and to check the safety of the residents, a protective sweep may be in order. Courts may recognize the validity of such an entry. When evaluating whether to uphold such an entry and the potential discovery of evidence courts have looked at the following circumstances:

• Whether the officers were motivated by the desire to assist a citizen and not obtain evidence of a crime:

• Because these situations are not "truly" exigent, did the officers take time to evaluate the circumstances prior to making entry to a residence and did they explore other alternatives besides entry first.

Document what you knew at the time of the entry and the reason for the entry to protect yourself and any evidence that may be found inside. Do not do a full blown search under these scenarios. If items of evidence or evidence of criminal activity is discovered your best course of action is to freeze the residence and obtain a search warrant.