Mansfield, J., delivered the opinion of the Court which was joined by
McCormick, P.J., and Keller, Holland, Womack and Keasler, JJ. Meyers, J.
delivered a dissenting opinion. Johnson, J., delivered a dissenting opinion which was
joined by Price, J.
Kyle Walker Wright, appellant, was a passenger in the rear seat of a car traveling east on Highway 620 in Williamson County at about 4:00 AM on April 28, 1996. Appellant was observed by Williamson County Deputy Sheriff Jack Tomlinson leaning out of an open rear window and vomiting.(1) Deputy Tomlinson testified at a suppression hearing he thought it was unusual for a passenger to be hanging out of the window of a moving car while vomiting; he therefore stopped the car "basically to make sure he was not being assaulted and to see if he needed medical attention." Deputy Tomlinson also testified he was concerned appellant was at risk if the car had a blow-out or somehow went out of control. It is undisputed no criminal activity or traffic law violation was observed by the deputy prior to his stopping the car.
As he approached the car, Deputy Tomlinson testified, he smelled odors suggestive of alcoholic beverages and marihuana. He then observed a partially smoked marihuana cigarette in plain view on the console between the two front seats. No other controlled substances were found in the vehicle. Appellant was subsequently charged with the offense of possession of less than two ounces of marihuana. Tex. Health and Safety Code 431.121(b)(1). Pursuant to a plea bargain after his motion to suppress was denied, appellant entered a plea of no contest. The trial court deferred adjudication of guilt, assessed a fine of $250, placed appellant on community supervision for nine months, and ordered him to perform fifty hours of community service.
The Third Court of Appeals sustained appellant's sole point of error and reversed, holding the marihuana was observed as the fruit of an illegal stop and must be suppressed as such. Wright v. State, 959 S.W.2d 355 (Tex.App.-Austin 1998).
We granted the State's Petition for Discretionary Review to consider the following ground for review:
Where an officer has reasonable grounds to believe that a passenger in a
moving vehicle is in need of assistance, or is in danger of being harmed, does
the Fourth Amendment prohibit the officer from conducting an investigatory
stop pursuant to the officer's "community caretaking" function?
The United States Constitution protects persons against "unreasonable searches and seizures." U.S. Constitution amend. IV. In general, law enforcement personnel may not search or seize an individual absent a warrant based on probable cause. However, a temporary investigative detention and pat down search for possible weapons or contraband without a warrant is permissible provided the officer has a reasonable belief the individual has been engaged in criminal activity or is armed. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968); Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338 (1979); United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690 (1981). See also Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382 (1991); Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130 (1993).
The Supreme Court, furthermore, has, for several decades, recognized that automobiles, due to their mobility, present a situation different than that of fixed property, such as a residence. Accordingly, the Court has recognized an automobile exception to the general requirement under the Fourth Amendment that a warrant first be obtained before a search or seizure may be conducted. Under certain recognized circumstances, warrantless searches and/or seizures of automobiles and the persons found therein may be reasonable, even though a warrant might be required for a search of a fixed piece of property such as a residence. Cooper v. California, 386 U.S. 58, 59, 87 S.Ct. 788, 790 (1967); Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330 (1977); Maryland v. Wilson, 518 U.S. 408, 117 S.Ct. 882 (1997).
In the present case, the vehicle in which appellant was a passenger was not stopped due to any violation of traffic laws or because it was suspected of having been involved in any criminal activity. Therefore, the automobile exception to the warrant requirement set forth in the above cases is not applicable here.
However, the Supreme Court has also recognized a community caretaking function of law enforcement as a reasonable exception to the Fourth Amendment's warrant requirement. In Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523 (1973), the accused was involved as the driver in an accident.(2) His disabled vehicle was towed to a private lot. Because the accused was a police officer in another city (Chicago), the arresting officer searched the vehicle after it was towed for the accused's service revolver. Evidence tying the accused to a murder committed shortly before his accident was found in the trunk of the accused's car. No service revolver was found. The accused was subsequently convicted of the murder.
In upholding the warrantless search of Dombrowski's vehicle, the Court held:
In Harris,(3) the justification for the initial intrusion into the vehicle was to
safeguard the owner's property, and in Cooper,(4) it was to guarantee the safety
of the custodians. Here, the justification, while different, was as immediate
and as constitutionally reasonable as those in Harris and Cooper: concern for
the safety of the general public who might be endangered if an intruder
removed a revolver from the trunk of the vehicle . . . although there is no
record basis for discrediting such testimony, it was corroborated by the
circumstantial fact that at the time the search was conducted Officer Weiss
was ignorant of the fact that a murder, or any other crime, had been committed
. . . the fact that the protection of the public might, in the abstract, have been
accomplished by "less intrusive" means does not, by itself, render the search
Cady v. Dombrowski, 93 S.Ct. 2531.
The search at issue in Cady v. Dombrowski was not conducted to uncover evidence of criminal activity; it was conducted solely to locate and secure Dombroski's service revolver out of concern that it might fall into the hands of the wrong people. Similarly, in the present case, the car in which appellant was a passenger was stopped, not because of any evidence of criminal activity, but out of concern for appellant's health. Thus, we must determine if Deputy Tomlinson acted reasonably when he stopped the vehicle out of concern for the welfare of appellant when he observed him leaning out the open rear window and vomiting at 4:00 AM.
The Supreme Court expressly recognized that police officers do much more than enforce the law, conduct investigations, and gather evidence to be used in criminal proceedings. Part of their job is to investigate accidents -- where there is often no claim of criminal liability -- to direct traffic and to perform other duties that can be best described as "community caretaking functions." Cady v. Dombrowski, 93 S.Ct., at 2528. As part of his duty to "serve and protect," a police officer may stop and assist an individual whom a reasonable person -- given the totality of the circumstances -- would believe is in need of help. In determining whether a police officer acted reasonably in stopping an individual to determine if he needs assistance, the following factors(5) are relevant to said determination:
(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.
Appellant avers that different standards should apply , i.e., stricter standards, to stops under the community caretaking doctrine of a vehicle to check on the welfare of a passenger as opposed to that of the driver. It is true that a driver in distress is potentially a greater threat to the well-being of the general public than that presented by a distressed passenger. The Supreme Court, in Cady, however, drew no distinction in the applicability of the community caretaking function to stops to determine the welfare of passengers as opposed to drivers and we refuse to do so here.(6)
While we today recognize the existence of the community caretaking function in Texas, we emphasize its narrow applicability. Only in the most unusual circumstances will warrantless searches of private, fixed property, or stops of persons located thereon, be justified under the community caretaking function, given the greater expectation of privacy inherent with respect to residences and other private real property.(7)
The judgment of the court of appeals is vacated and this cause is remanded to the court of appeals for further proceedings consistent with this opinion.
DELIVERED DECEMBER 15, 1999
1. Besides appellant, there were two other persons in the vehicle, the driver and a second passenger.
2. The accused was intoxicated and was subsequently arrested for driving while intoxicated and brought to a hospital for treatment of his injuries.
3. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992 (1968).
4. Cooper v. California, supra.
5. In certain instances, other factors may also be relevant in determining whether the officer acted reasonably.
6. We note that there were no passengers in Dombrowski's vehicle when stopped by the police.
7. We have already recognized a doctrine similar to the community caretaking function applicable to warrantless searches of private residences: the emergency doctrine. See Brimage v. State, 918 S.W.2d 466, 500-502 (Tex.Crim.App. 1996) (plurality op.).