|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Smigliano, 427
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
Michael T. Smerczynski, Topsfield, for
defendant.
Deirdre L. Casey, Assistant District
Attorney, for the Commonwealth.
Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY,
FRIED,
ABRAMS, Justice.
The
defendant, Vincent A. Smigliano, was convicted of operating a motor vehicle
while under the influence[427
We
summarize the facts the motion judge found.
On
[1][2][3]
1. A seizure takes place within the meaning of the Fourth Amendment to the
United States Constitution, see Terry v.
Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and art. 14 of the
Massachusetts Declaration of Rights "if, in view of all the circumstances
surrounding the incident, a reasonable person would have believed that he was
not free to leave." Commonwealth v. Stoute, 422 Mass. 782,
786, 665 N.E.2d 93 (1996), quoting
Commonwealth v. Borges, 395 Mass. 788, 791, 482 N.E.2d 314 (1985). We have said that, under art. 14, pursuit by
a police officer constitutes a seizure that must be supported by, at least,
reasonable suspicion. See Commonwealth v. Stoute, supra at 789, 665
N.E.2d 93; Commonwealth v. Thibeau, 384 Mass. 762,
764, 429 N.E.2d 1009 (1981). Here, there
was no significant pursuit because the defendant had already stopped his car
before the officer activated the blue lights.
Nevertheless, a reasonable person, on the activation of a police car's
blue lights, would believe that he or she is not free [427 Mass. 492] to
leave. See Ozhuwan v. State, 786 P.2d 918, 920 (Alaska Ct.App.1990) ("in
the eyes of a reasonable person, the police conduct in the present case [activating
the overhead red lights] would be virtually tantamount to an overt command to
'stay put' "); State v. Markgraf, 59 Wash.App. 509, 511,
798 P.2d 1180 (1990), citing State v.
DeArman, 54 Wash.App. 621, 624, 774 P.2d 1247 (1989). Activating the blue lights thus was a seizure
requiring some level of justification.
[4][5][6]
The seizure was justified because the officer had grounds for reasonable
suspicion that the defendant was engaged in criminal activity, more
specifically, that the defendant was operating while under the influence of
alcohol. The officer had received the
motorist's report that the defendant's car had been "all over the
road," and he had seen the defendant's driving. Because the facts offered to justify the
seizure included the motorist's report, we evaluate the motorist's basis of
knowledge and reliability. See Commonwealth v. Lyons, 409 Mass. 16,
19, 564 N.E.2d 390 (1990). Weakness in
either requirement can be made up for by independent police corroboration. Id.
Because reasonable suspicion is a lower standard than probable cause, we apply
this test less rigorously when such a report is offered to support reasonable
suspicion. See id. Here, the motorist saw
the defendant's car. Therefore, the
report was based on the motorist's personal knowledge. We have no evidence as to what, if anything,
the officer concluded about the motorist's reliability from their face‑to‑face
encounter. However, the report was
corroborated by the officer's observations of the defendant's car swerving and
nearly hitting parked cars. Based on the
report and the officer's observations, an officer could have reasonably
suspected that the defendant was operating a motor vehicle while under the
influence of alcohol. Therefore,
activating the blue lights was justified as a Terry stop to investigate possible criminal activity. The judge properly denied the motion to
suppress.
We do
not agree with the concurrence's view that this case is controlled by the
"community caretaking" rationale of Commonwealth v. Leonard, 422 Mass. 504, 663 N.E.2d 828, cert.
denied, 519 U.S. 877, 117 S.Ct. 199, 136 L.Ed.2d 135 (1996). In
Leonard, the challenged police action was opening the driver's side door of
the defendant's car. The police officer in Leonard had activated his lights,
"used his PA system and air horn," and knocked on the window, and the
defendant was completely unresponsive. Id. at 505, 663 N.E.2d 828. This gave rise to a reasonable belief that
the driver probably required immediate [427
Mass. 493] assistance, justifying
opening the door. See id. at 509, 663 N.E.2d 828. Indeed, it is hard to see what else the
officer could have done. It would have
been reasonable to believe, for example, that the defendant had had or was
having a heart attack or was seriously ill, in which case the officer could not
reasonably have simply left a citizen to die without exposing himself and his
municipal employer to criticism and potential liability. In this case, by contrast, there are no
similar facts giving rise to a reasonable belief that the defendant required
immediate assistance.
[7][8]
There is no merit to the contention that there was no basis for a Terry stop simply because the officer
testified he did not suspect the defendant of any wrongdoing but believed the
defendant was lost (FN1) or having trouble.
Because the facts and circumstances known to the officer are sufficient
to create a reasonable suspicion of operating under the influence in a
reasonable police officer, a Terry
stop is justified regardless of the officer's subjective state of mind. See, e.g.,
Ornelas v. United States, 517 U.S. 690, 116 S.Ct. 1657, 1661‑1662,
134 L.Ed.2d 911 (1996) (determination of reasonable suspicion principally based
on "whether [the] historical facts, viewed from the standpoint of an
objectively reasonable police officer, amount to reasonable
suspicion"). See also Whren v. United States, 517 U.S. 806,
812‑814, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996) (constitutional
reasonableness of traffic stops based on probable cause does not depend on
actual motivations of individual officers;
subjective intentions play no role in analysis under Fourth
Amendment). (FN2)
The
concurrence proposes that police officers have discretion [427 Mass. 494] that is
essentially standardless. This would
leave the police with no limitations, trial judges with no guidance, and
citizens with no effective constitutional protection. (FN3)
2.
General Laws c. 90, § 24K, authorizes the Secretary to "promulgate rules
and regulations regarding satisfactory methods, techniques and criteria for the
conduct of [breath] tests, and [to] establish a statewide training and
certification program for all operators of [breath‑testing]
devices." It further requires
"that no person shall perform such a test unless certified by the
[S]ecretary." The Secretary has
promulgated regulations authorizing the council to certify breath‑testing
operators. 501 Code Mass. Regs. §§ 2.21‑2.22
(1993). The defendant argues that this
regulation is inconsistent with G.L. c. 90, § 24K, and is therefore
invalid. Further, because the officer
who administered a breath test to the defendant was certified by the council
rather than the Secretary, the defendant argues that the test was invalid and
inadmissible. We disagree.
[9]
In our view, the Secretary has validly delegated her certification authority to
the council. "[A]n administrative
agency ... can delegate the performance of administrative and ministerial
duties and, where it is impossible for them to be performed in person, it must
do so." Morris v. Commonwealth, 412 Mass. 861,
865, 593 N.E.2d 241 (1992), quoting Krug
v. Lincoln Nat'l Life Ins. Co., 245 F.2d 848, 853 (5th Cir.1957). It is unreasonable to expect the Secretary
herself to certify each breath‑test operator in person, so the duty must
be delegated. The council is within the
Executive Office of Public Safety, of which the Secretary is the head. G.L. c. 6A, §§ 2‑3, 18. The council thus certifies operators under
the Secretary's ultimate supervision.
Also, the council is in the best position to determine who has
successfully completed its training program, so it is the most obvious entity
to perform the ministerial task of issuing the certifications. We conclude that the delegation of
certification authority to the council did not violate G.L. c. 90, § 24K, that
the breathalyzer [427 Mass. 495] operator was properly certified, and
that the judge properly denied the defendant's motion to suppress.
Judgment affirmed.
FRIED,
Justice (concurring, with whom LYNCH, Justice, joins).
I
agree that the officer acted properly when he activated his blue lights and
approached the defendant's vehicle. I
also agree that these actions constituted a seizure for purposes of the Fourth
Amendment to the United States Constitution and art. 14 of our Declaration of
Rights. But I think it stretches a point
to say, as does the court, that these actions were justified, under the rule of Terry v. Ohio, 392 U.S. 1, 88 S.Ct.
1868, 20 L.Ed.2d 889 (1968), by a "reasonable suspicion that the defendant
was engaged in criminal activity, more specifically, that the defendant was
operating while under the influence of alcohol." Ante at 343. And there is no reason to stretch in order to
justify the officer's eminently reasonable conduct. The motion judge found that "[t]here was
a snowstorm taking place and the road conditions were icy and snowy; cars were sliding and skidding on the
roadways." He also found that
"[t]he officer lawfully stopped the motor vehicle and engaged the operator
in conversation because of what the unknown motorist told him, because of what
he observed while following the vehicle, and because the operator with his head
slumped over the wheel should be assisted by the police." The motion judge made no finding or ruling
that the officer had reason to suspect that the defendant had been operating a
vehicle while under the influence of alcohol or that any other unlawful
activity was afoot. He simply denied the
motion to suppress. Moreover, the
officer testified that, at the time he pulled up behind the defendant's
vehicle, he had no thought that any violation of law had occurred, but rather
that he was investigating whether the operator was lost or having some kind of
trouble operating his vehicle under the hazardous condition that then
obtained. The officer also testified
that other vehicles were also slipping and sliding on the roads because of the
very poor conditions. This testimony
accords with the findings quoted above.
It was on this basis that the Commonwealth briefed and argued this case
to us.
In my
view this case is controlled by our decision in Commonwealth v. Leonard, 422 Mass. 504, 663 N.E.2d 828, cert.
denied, 519 U.S. 877, 117 S.Ct. [427
Mass. 496] 199, 136 L.Ed.2d 135
(1996). In Leonard, as here, the police officer noticed circumstances that
led him to believe that the motorist, who was lawfully parked in a cut‑out
area on Storrow Drive in Boston, was in some sort of difficulty. The officer pulled in behind the stopped car
and activated his blue lights. The
motorist in that case did not complain about the use of the blue lights, but
rather that the officer, when he was unable to obtain a response from her,
opened her vehicle door. We held:
"Even if opening an unlocked vehicle
door, where the police officer is acting out of concern for the well being of
the person inside rather than on the basis of a suspicion of criminality,
passes some constitutional threshold requiring constitutionally sufficient
justification ... what [the trooper] did here was a minimally intrusive response to
one of the myriad and uncategorizable events that may alert an officer that his
assistance may be required."
Id. at 508‑509, 663 N.E.2d
828. The officer's action in opening
the vehicle door in Leonard would
have to be categorized as a search, while what we have here is technically a
seizure, but the same principles apply.
I
do not know why the court stretches to justify the seizure in this case as an
exercise in criminal law enforcement when the officer's testimony, the
objective circumstances, and the Commonwealth's theory of the case present a
clear instance of another and entirely sufficient justification, what has long
been recognized as the exercise of the "community caretaking" function. Cady
v. Dombrowski, 413 U.S. 433, 441, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706
(1973). The motion judge's findings also
point in this direction and certainly speak not at all of reasonable suspicion
nor of criminality. I do not understand
why the court assumes that the nightstick and revolver rather than the helping
hand are the more natural or the inevitable way of conceptualizing police
action.
Our
decision in Leonard, which clearly
rested on the community caretaking justification, broke no new ground. On the contrary, the cases are literally
legion in which police action involving a search or seizure is justified not by
any reference to a law enforcement function but under this community caretaking
rationale. See, e.g., United States v. Rohrig, 98 F.3d 1506, 1518‑1522
(6th Cir.1996) (entry to quell loud and disruptive noise in residential
neighborhood is sufficiently compelling to
[427 Mass. 497] justify
warrantless intrusions in certain circumstances); Wayne v. United States, 318
F.2d 205, 212 (D.C.Cir.), cert. denied, 375 U.S. 860, 84 S.Ct. 125, 11 L.Ed.2d
86 (1963) ("[A] warrant is not required to break down a door to enter a
burning home to rescue occupants or extinguish a fire, to prevent a shooting or
to bring emergency aid to an injured person"); People v. Lanthier, 5
Cal.3d 751, 755, 97 Cal.Rptr. 297, 488 P.2d 625 (1971) (warrantless search of
lockers justified to identify source of noxious odor permeating surrounding
area);
State v. Hetzko, 283 So.2d 49, 52 (Fla.Dist.Ct.App.1973) (police
officers "had every reason to believe that the defendant was in distress
or that some foul play had occurred";
they "would have been derelict in their duty" if they had not
made a warrantless entry into the house).
See generally 3 W.R. LaFave, Search and Seizure § 6.6 (3d ed.1996).
Similarly,
in the vast and much litigated domain of regulatory searches and seizures, the
measure of compliance with the Fourth Amendment is certainly not whether a
warrant appropriate to a criminal investigation might have been obtained or
warrantless action in enforcement of the criminal law would have been
justified. Rather, the question relates
to the reasonableness of the action measured by the nature of the regulation
being enforced and whether or not in the particular circumstances a warrant may
reasonably be required. See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 871‑873,
107 S.Ct. 3164, 3163‑3168, 97 L.Ed.2d 709 (1987) (probation officers'
prerogative to conduct warrantless searches of probationers' homes for evidence
of probation infraction upheld); Commonwealth v. Tart, 408 Mass. 249, 255,
557 N.E.2d 1123 (1990), quoting New York
v. Burger, 482 U.S. 691, 702, 107 S.Ct. 2636, 2643‑2644, 96 L.Ed.2d
601 (1987) ("[A] warrantless administrative search to determine the permit
status of a fishing vessel which is landing raw fish in the Commonwealth is
'necessary to further [the] regulatory scheme of [c. 130]' ");
McCabe v. Life‑Line Ambulance Serv., Inc., 77 F.3d 540, 547
(1st Cir.), cert. denied sub nom. McCabe v. Lynn, 519 U.S. 911, 117 S.Ct.
275, 136 L.Ed.2d 198 (1996) (city policy permitting forcible warrantless entry
of private residence to enforce order accurately to identify and promptly
detain recalcitrant and dangerous mentally ill persons upheld);
United States v. Green, 474 F.2d 1385, 1389 (5th Cir.), cert.
denied, 414 U.S. 829, 94 S.Ct. 55, 38 L.Ed.2d 63 (1973) ("Until someone
expert in the cause of fires arrives, inspects the scene, and determines that
the fire has been completely extinguished, the firemen cannot reasonably
depart. The imposition of a warrant
requirement in such circumstances would immobilize the entire apparatus of [427 Mass. 498] fire protection"); Horner v. State, 836 P.2d 679, 682
(Okla.Crim.App.1992) (warrantless
inspection of salvage yard based on statutory regulation of industry was
reasonable because State had substantial interest in regulating industry to
control automobile theft).
To
be sure, this case, like the Leonard
case, involves not premises but a motor vehicle. But motor vehicle cases are but a species of
a genus the members of which number in the hundreds. Indeed, it is standard lore that, if
anything, motor vehicles are the occasion for less not more stringent
constitutional safeguards than private premises. See
Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325
(1974) ("One has a lesser expectation of privacy in a motor vehicle
because its function is transportation and it seldom serves as one's residence
or as the repository of personal effects"); Carroll v. United States,
267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). And no basis in principle or practicality
exists for departing from the fundamental touchstone of reasonableness in cases
where a motor vehicle is searched or detained for other than law enforcement
reasons. As the Supreme Court stated in South Dakota v. Opperman, 428 U.S. 364,
367‑368, 96 S.Ct. 3092, 3096, 49 L.Ed.2d 1000 (1976), "[i]n
discharging their responsibilities for ensuring public safety, law enforcement
officials are necessarily brought into frequent contact with automobiles. Most of this contact is distinctly
noncriminal in nature." And, of
course, the exercise of this police function in respect to motor vehicles is
neither novel nor infrequent. As the
cases collected in the Appendix illustrate, courts all over the country have
long recognized community caretaking as a constitutionally legitimate basis for
action that constitutes a search or seizure.
Perhaps
the court avoids this most natural and familiar analysis of this case out of a
concern that the rubric of community caretaking is too amorphous and might be
taken as offering the police carte blanche for intruding on the rights of
citizens. But this is an unwarranted
concern. As its text indicates, (FN1)
"[t]he ultimate standard set forth in the Fourth Amendment is
reasonableness." Cady v. Dombrowski, 413 U.S. 433, 439, 93
S.Ct. 2523, 2527, 37 L.Ed.2d 706 (1973).
See Maryland v. Wilson, 519
U.S. 408, ‑‑‑‑ ‑ ‑‑‑‑,
117 S.Ct. 882, 884‑885, [427
Mass. 499] 137 L.Ed.2d 41 (1997). Reasonableness is also the touchstone of art.
14. (FN2) But reasonableness here as elsewhere is a
legal conclusion, based on an objective reasoning ultimately disciplined and
policed by the courts. That the test is
one of reasonableness should not be misunderstood as authorizing law
enforcement officers to stop and detain whomever they wish for whatever reason
they like. The test of reasonableness in
respect to criminal investigations, as in the case of Terry stops, depends on a balance between the law enforcement
function claimed to justify it and the intrusions (with its attendant dangers
of abuse) on the liberty of the citizen, and this balance must in the last
analysis be presented to and pass muster in court. So too here, where the justification is the
performance of the multifarious purposes gathered under the rubric of
"community caretaking functions," the particular intrusion must be
reasonable when balanced against the justification offered for it. The cases gathered in the Appendix generally
speak to the need to strike such an appropriate balance. What is clear is that here too a court must
be the ultimate arbiter of reasonableness.
Perhaps the best and clearest statement of what reasonableness means in
this community caretaking context was articulated in State v. Anderson, 142 Wis.2d 162, 168‑170, 417 N.W.2d 411
(Ct.App.1987):
"The ultimate standard under the
fourth amendment is the reasonableness of the search or seizure in light of the
facts and circumstances of the case....
In a community caretaker case, this requires a balancing of the public
need and interest furthered by the police conduct against the degree of and
nature of the intrusion upon the
privacy of the citizen.... This test
requires an objective analysis of the circumstances confronting the police
officer, including the nature and reliability of his information, with a view
toward determining whether the police conduct was reasonable and
justified.... This test also requires an
objective assessment of the intrusion upon the privacy of the citizen.... [T]his is essentially the Terry test, but applied in a community caretaker setting. Overriding this entire process is the
fundamental consideration that any warrantless intrusion must be as limited as
is reasonably [427 Mass. 500] possible, consistent with the purpose
justifying it in the first instance....
"We conclude that when a community
caretaker function is asserted as justification for the seizure of a person,
the trial court must determine: (1) that
a seizure within the meaning of the fourth amendment has occurred; (2) if so, whether the police conduct was
bona fide community caretaker activity;
and (3) if so, whether the public need and interest outweigh the
intrusion upon the privacy of the individual.
"As to the last factor‑‑weighing
the public need and interest against the intrusion‑‑relevant
considerations include: (1) the degree
of the public interest and the exigency of the situation; (2) the attendant circumstances surrounding
the seizure, including time, location, the degree of overt authority and force
displayed; (3) whether an automobile is
involved; and (4) the availability,
feasibility and effectiveness of alternatives to the type of intrusion actually
accomplished." (Footnotes and citations
omitted.)
Finally, the analysis offered here is not
at odds with that recently announced by the Supreme Court in Whren v. United States, 517 U.S. 806,
812‑814, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996), in which the Court
held that if a police officer has an objective basis for suspecting that one
kind of criminality, in that case a marginal civil traffic infraction, has
occurred, it is irrelevant that the actual subjective basis for the police
action may have been suspicion that a far more serious form of criminality was
afoot, but one for which a reasonable basis for action did not exist. This holding cannot mean, and the Court does
not say, that only if a police officer has an objective basis to stop a motor
vehicle for law enforcement purposes, may he take such action. This would overrule sub silentio several of
the Court's own cases and a vast body of jurisprudence elsewhere. Nor does the Court say that, where there are
two equally sufficient bases for police intervention, a court must first reach
for the criminal rather than the caretaking justification‑‑that it
must justify the nightstick before it justifies the helping hand.
In
Whren, the officer asserted that he made the stop in order to give the
driver a warning concerning traffic violations, and [427 Mass. 501] the
United States simply argued that the officer's asserted ground was a lawful
one.
Id. at 808‑810, 116 S.Ct. at 1772. The
Whren Court affirmed the defendants' convictions on being satisfied that
this was a lawful ground for the stop.
Likewise, in the instant case, the ground that the police officer
articulated in his testimony and the one that the Commonwealth based its
argument on was a constitutionally valid one.
APPENDIX
Many Federal and State courts have held
that law enforcement officials may approach and detain citizens for community
caretaking purposes in a variety of circumstances without running afoul of the
Fourth Amendment and equivalent State constitutional provisions. See, e.g.,
Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1497 (9th
Cir.1996) (police can stop any motorcyclist wearing a helmet that looks like
noncomplying variety, even though cyclist commits no offense if he lacks actual
knowledge that the helmet does not comply, because stop serves dual purpose of
identifying individuals who intentionally violate the law, and informing riders
who are unknowingly wearing noncomplying helmets that their helmets do not
comply and possibly will not protect them sufficiently); United States v. King, 990 F.2d
1552, 1560‑1561 (10th Cir.1993) (officer justified in detaining
defendant's motor vehicle in order to inform defendant of hazardous conditions and to advise him to stop
honking; handgun in plain view may have
been lawfully possessed and so did not and was not claimed to give reasonable
ground of suspicion, but detention by show of force nevertheless justified out
of concern for officer's own safety and that of bystanders);
Crauthers v. State, 727 P.2d 9, 10‑11 (Alaska Ct.App.1986)
(where defendant stopped thirty feet before a yield sign and rolled down window
of his motor vehicle, officer reasonably concluded that defendant was asking
for assistance and was justified in activating overhead flashing lights and
approaching defendant; citing Cady and declining to follow Dunbar ); State v. Puig, 112 Ariz.
519, 520, 544 P.2d 201 (1975) (officer justified in stopping defendant's motor
vehicle and requesting to see his license and registration after observing
defendant giving a hand signal before a turn and therefore suspecting that his
turn signals were inoperative); State v. Harrison, 111 Ariz. 508, 509,
533 P.2d 1143 (1975) (officer justified in stopping defendant's motor vehicle
after observing left tire of defendant's vehicle "bouncing"; "the state has a valid interest in the
safety of its highways for travelers"); State v. Mitchell, 498 N.W.2d 691 (Iowa
1993) (trooper had legitimate public safety responsibility, arising from a
burned‑out taillight, to stop defendant even though no violation of law
had occurred; there was no indication
that articulated safety concern was a pretext); State v. Pinkham, 565 A.2d
318 (Me.1989) (officer's observation of defendant motorist's misuse of marked
lanes furnished sufficient reason to justify stop for purely safety purposes to
advise defendant of his misuse; citing Cady ); State v. Fuller, 556 A.2d
224 (Me.1989) (officer was justified in stopping defendant's motor vehicle to
advise him "to fix the headlights before getting stranded in the
dark" where defendant's vehicle approached officer with its headlights
blinking on and off, and officer "reasonably suspected that [defendant]
may have [427 Mass. 502] been in trouble");
State v. Green, 133 N.H. 249, 256, 575 A.2d 1308 (1990) (articulable
suspicion of crime not needed where police "regulat[ing] the movements of
civilians at crime scenes"); State v. Oxley, 127 N.H. 407, 411, 503
A.2d 756 (1985) (officer's stop of a motor vehicle is justified where officer's
reason for stop was to ensure that furniture hanging out from the back of the
motor vehicle did not fall onto the highway); State v. Maynard, 114 N.H.
525, 526‑527, 323 A.2d 580 (1974) (officer's stop of a motor vehicle is
constitutional if he does so reasonably and in good faith believing that driver
"may be ill and physically unfit to drive"); State v. Martinez, 260
N.J.Super. 75, 78, 615 A.2d 279 (App.Div.1992) (officer's stop justified where
defendant was driving at an extremely low speed because such low speed was
possibly an indication that there is something wrong with the driver or the
motor vehicle, a threat to approaching vehicles, or an indication that the
neighborhood is being "cased"); State v. Goetaski, 209 N.J.Super. 362,
364‑365, 507 A.2d 751 (App.Div.), cert. denied, 104 N.J. 458, 517 A.2d 443
(1986) (officer's stop justified where defendant was driving slowly on shoulder
of rural highway flashing his left turn indicator); State v. Konewko, 529
N.W.2d 861, 863 (N.D.1995) (officer's opening driver's door of defendant's
parked motor vehicle was justified because officer observed defendant sliding
toward floor and door, and therefore probably thought defendant needed help);
Wibben v. State Highway Comm'r, 413 N.W.2d 329, 333 (N.D.1987)
(officer was justified in approaching defendant who was sitting in her motor
vehicle at 2:35 A.M. in a deserted parking lot after dispatcher relayed call
from unidentified person who reported that a person fitting defendant's
description was sick or intoxicated;
driver's privacy interest "minimal"); Provo City v. Warden, 844
P.2d 360, 361, 365 (Utah Ct.App.1992), aff'd, 875 P.2d 557 (Utah 1994) (stop
justified out of concern for defendant's "mental stability and
welfare" where two unidentified men approached officer and told him that
defendant was seeking to use cocaine so he could "drive [himself] into a
wall"); State v. Marcello, 157 Vt. 657, 658, 599
A.2d 357 (1991) (a passing motorist's tip‑‑"there is something
wrong with that man"‑‑was sufficient to justify trooper's
making a "public interest" stop to determine whether defendant needed
assistance); Commonwealth v. Waters, 20 Va.App. 285,
291, 456 S.E.2d 527 (1995) (citing Cady
"community caretaking" exception, officer's stop of defendant was justified as reasonable exercise of
community caretaker function where defendant's unsteady walking led to
reasonable belief that aid or assistance was needed); State v. Chisholm, 39
Wash.App. 864, 866‑868, 696 P.2d 41 (1985) (officer's stop solely for
purpose of informing defendant driver that his hat was in jeopardy of blowing
out of bed of pickup truck was "reasonable" as a legitimate community
caretaking stop; Dunbar noted and disregarded on authority
of Cady ).
But see, e.g., United States v. Gregory, 79 F.3d 973, 978‑979 (10th
Cir.1996) (officer's stop of defendant's truck after it crossed into right
emergency lane of highway, based on purported suspicion that defendant was
impaired by alcohol or lack of sleep, did not meet reasonableness test of
Fourth Amendment); United States v. Dunbar, 470 F.Supp. 704,
708 (1979) (officer's good faith belief that defendant was lost was not
sufficient basis for stop of vehicle); Ozhuwan v. State, 786 P.2d 918, 921‑923
(Alaska Ct.App.1990) (the fact that defendant had parked her motor vehicle
legally but in an area frequently used by minors to consume alcohol did not
justify officer's activating of lights and thus seizing defendant);
McDougal v. State, 580 So.2d 324, 325 (Fla.Dist.Ct.App.1991)
(officer's stop of defendant's motor vehicle to give defendant information he
had sought from officer two weeks before was unjustified); [427 Mass. 503]
People v. Deppert, 83 Ill.App.3d 375, 381, 38 Ill.Dec. 675, 403 N.E.2d 1279
(1980) (officer's belief that defendant motorist was in need of assistance was
insufficient to justify stop); Doheny v. Commissioner of Pub. Safety,
368 N.W.2d 1 (Minn.Ct.App.1985) (officer's belief that driver was lost did not
justify stop); State v. Brown, 509 N.W.2d 69 (N.D.1993)
(though officer may be fully justified in stopping vehicle to provide
assistance, stop in instant case is invalid as officer failed to provide any
clear reason for thinking defendant needed assistance); State v. Langseth, 492
N.W.2d 298, 301‑302 (N.D.1992) (officer's activation of his warning light
and approaching a van stopped along a rural gravel road was unreasonable
seizure);
State v. Sarhegyi, 492 N.W.2d 284, 286 (N.D.1992) (mere fact that
defendant had parked his motor vehicle next to tractors and combines in a farm
implement dealership at 1:30 A.M., and attempted to leave the area when officer
approached did not justify stop); Barrett v. Commonwealth, 250 Va. 243, 247‑248,
462 S.E.2d 109 (1995) (without deciding the applicability of community
caretaking functions doctrine, the fact that defendant was driving partially on
shoulder of road, partially on adjoining yard, and not entering highway was not
sufficient to show that defendant needed police assistance);
State v. Markgraf, 59 Wash.App. 509, 512‑513, 798 P.2d 1180
(1990) (radio dispatch informing officer that an occupant in a motor vehicle
fitting description of defendant's motor vehicle was in trouble justified
officer's initial contact, but because defendant told officer that he was all
right, further inquiry was unjustified); State v. DeArman, 54 Wash.App. 621, 625,
774 P.2d 1247 (1989) (despite officer's belief that defendant or his motor
vehicle was disabled because vehicle remained motionless at a stop sign for
forty‑five to sixty seconds, this belief was dispelled when vehicle
moved, and therefore stop was unjustified).
(FN1.) An officer's reasonable belief that a
motorist is lost "free of complicating elements (safety hazards, illness,
suspicion of crime, or the like)" is insufficient to justify a seizure.
Commonwealth v. Canavan, 40 Mass.App.Ct. 642, 647 & n. 6, 667
N.E.2d 264 (1996).
(FN2.) Many cases cited in the concurrence,
identifying specific facts justifying police intervention, support our view
that there must be limits on a police officer's discretion to extend a
"helping hand." See, e.g., United States v. King, 990 F.2d 1552,
1561 (10th Cir.1993) (driver incessantly honked his horn at accident site; officer reasonably believed this created a
hazard);
Crauthers v. State, 727 P.2d 9, 11 (Alaska Ct.App.1986) (driver
rolled down his window; officer reasonably
believed he was requesting assistance); State v. Puig, 112 Ariz. 519, 520, 544
P.2d 201 (1975) (driver used hand signal;
officer reasonably stopped him "to check apparent defects in safety
devices"); State v. Mitchell, 498 N.W.2d 691, 694
(Iowa 1993) (broken taillight justified stop for safety reasons);
State v. Fuller, 556 A.2d 224, 224 (Me.1989) (headlights blinked
several times; officer reasonably
believed they were defective); Provo City v. Warden, 844 P.2d 360, 361,
365 (Utah Ct.App.1992), aff'd, 875 P.2d 557 (Utah 1994) (officer received tip
that defendant was seeking to buy cocaine "so he could 'drive himself into
a wall' "; stop justified for
suicide prevention); Commonwealth v. Waters, 20 Va.App. 285,
291, 456 S.E.2d 527 (1995) (pedestrian staggered and walked unsteadily; officer reasonably believed he was
"intoxicated, ill, or in need of help").
(FN3.)
Standards are developing to determine whether the police in "community
policing" situations have acted reasonably. See
Provo City v. Warden, 844 P.2d 360 (Utah Ct.App.1992), aff'd, 875 P.2d 557
(Utah 1994). See also State v. Anderson, 142 Wis.2d 162, 169,
417 N.W.2d 411 (Ct.App.1987).
(FN1.) The relevant portion of the Fourth
Amendment to the United States Constitution states: "The right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated...."
(FN2.) The relevant portion of art. 14 of the
Massachusetts Declaration of Rights states:
"Every subject has a right to be secure from all unreasonable
searches, and seizures, of his person, his houses, his papers, and all his
possessions."