We have the community caretaking function in Texas, and I suppose that makes some sense. After all, these things come up with the officer approaching someone in a public place and saying something like, “Can I help you, ma’am?” The problem is that the citizen may not want any help. What allows the officer to continue to bother the citizen who wants to be left alone? What are the guidelines that the officer is to follow?
The answer comes from Wright v. State, 7 S.W.3d 148 (Tex. Crim. App. 1999). In that case the deputy sheriff saw a passenger vomiting out the window of a moving vehicle. No traffic offense was being committed, but he stopped them anyway as a community caretaker. The Court of Criminal Appeals said that the factors relevant in determining whether or not the intrusion was reasonable are (1) the nature and level of the distress exhibited by the individual, (2) the location of the individual, (3) whether or not the individual was alone and/or had access to assistance independent of that offered by the officer, and (4) to what extent the individual, if not assisted, presented a danger to himself or others. The Court also said that the community caretaking function was to be very narrowly applied, and that in only the most unusual of circumstances is any warrantless search justified. The Court of Criminal Appeals remanded the case to the 3rd Court of Appeals to let it decide whether or not these facts were good enough to justify the stop. On remand the 3rd Court said, “Nope, not good enough.”
To me, this means that the court is serious about a couple of things. One is that this doctrine is to be narrowly applied, and the other is that it is absolutely fact driven—and the trial and/or lower appellate courts are to decide if the facts of the individual case justify the intrusion on the citizen. Andrews v. State, 79 S.W.3d 649 is a really good example of that. It is a Waco Court of Appeals case from 2002. A DPS trooper saw Mrs. Andrews leaning out of the open passenger door of a stopped vehicle on Interstate 45 about 1:00 in the morning and she was vomiting. Before he could get to them, the Andrews started to drive off. The officer wouldn’t let them, and Mr. Andrews, the driver, was charged with DWI. The Waco Court looked at the 4 factors listed above and found that the stop was not justified by the community caretaking function. In analyzing the facts, the Court does put more emphasis on factor 1—level of distress—than the other factors. This makes sense too. If the officer saw a man with a bleeding head wound sitting in a dark ally behind a strip joint, it is pretty easy to understand why the officer would need to approach the citizen and insist that he visit with him despite the citizen’s expected protest. The bleeding head wound sort of pulls the other factors along with it. The case that says the first factor is the most important is Corbin v. State, 85 S.W.3d 272 (Tex. Crim. App. 2002). On page 278 of Corbin is where you find the Court of Criminal Appeals saying that the first factor is the most important.
In our particular case, I think the State is in trouble on all the factors. The officer who is eating at Denny’s sees a crying woman in the parking lot. She is not injured, it is a well-lit parking lot of a restaurant open 24 hours a day, and before the officer ever gets to her she voluntarily gets into a vehicle and starts to leave. The distress level is very low, the location is a safe one, there is someone who can help her other than herself (that being the driver of the vehicle that just picked her up), and she doesn’t appear to be a danger to herself or others. I don’t necessarily blame the officer for making the decision to check things out, but once she decided to leave on her own, he had to let her (and the driver) go. If we change the facts up a little bit and said he was already talking to her when the truck pulled up and the driver opened the door and said, “Get in, let’s go,” it would be a closer call. In my opinion, this is a loser for the State. It is my hope that you will agree to refuse this case rather than have us spend the time and effort that a motion to suppress would take.
In this particular case, the prosecutor agreed with Tip and the case was dropped.