NO. 297-98







Meyers, J., delivered a dissenting opinion.


The Court vacates the judgment of the appellate court and remands this case for additional proceedings consistent with its opinion. Ante, at __, slip op. at 7. Specifically, the majority directs the Court of Appeals to determine on remand whether Deputy Tomlinson acted reasonably when he stopped the car in which appellant was a passenger in order to check on appellant's welfare. Id. at __, slip op. at 6. But the issue of whether Deputy Tomlinson acted reasonably has already been decided by the lower court.(1) The appellate court expressly concluded that, even under a "community caretaking"-type analysis, the officer's actions in these circumstances were unreasonable. See Wright v. State, 959 S.W.2d 355, 358 (Tex. App.--Austin 1998) ("We note . . . that appellant's detention would not have been lawful even under the Cady 'community caretaking' doctrine. . . . The stopping and detention of appellant was simply an unreasonable exercise of authority by [Deputy Tomlinson] in violation of appellant's constitutional rights"). That issue is therefore squarely before this Court and deserves to be addressed. See, e.g., Lee v. State, 791 S.W.2d 141, 142 (Tex. Crim. App. 1990) (per curiam) (noting that, as a court of discretionary review, we are authorized to review "decisions" of the courts of appeals); see also, Tex. Crim. Proc. Code Ann. art. 44.45(b) (Vernon 1979 & Supp. 1999); Tex. R. App. P. 66.1. Furthermore, while I agree that there are circumstances where law enforcement may constitutionally stop a vehicle absent any suspicion of criminal wrongdoing, I disagree with the manner in which the majority formulates its "totality of the circumstances" test without any reference to established Fourth Amendment case law. I dissent.

Proper appellate analysis begins with the standard of review. In Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997), this Court indicated that it would give "almost total deference to the trial court's determination of historical facts" and that it would review de novo "mixed questions of law and fact" that did not turn on an evaluation of credibility and demeanor. In the instant case, the "historical facts" are uncontroverted. See ante, at __, slip op. at 1-2. Under the rubric presented in Guzman, the "mixed question" involving whether Deputy Tomlinson's actions were reasonable under the Fourth Amendment must be reviewed by this Court de novo. Guzman, 955 S.W.2d at 89.

Neither this Court nor the United States Supreme Court has had occasion to decide whether the Fourth Amendment authorizes officers to make "welfare" stops of law-abiding citizens.(2) However, many courts in other jurisdictions have addressed the issue, and, as far as my research has revealed, all of those have at least suggested that a stop may be authorized in the absence of reasonable suspicion or probable cause in circumstances where an officer is reasonably carrying out his role as "community caretaker." See generally United States v. Rideau, 949 F.2d 718, 720 (5th Cir. 1992), vacated on other grounds, 969 F.2d 1572 (5th Cir. 1992) (en banc) (agreeing with panel on this point); United States v. King, 990 F.2d 1552, 1559-60 (10th Cir. 1993); United States v. Dunbar, 470 F. Supp. 704, 706-07 (D. Conn. 1979), aff'd, 610 F.2d 807 (2d Cir. 1979); State v. Crauthers, 727 P.2d 9, 10-11 (Alaska Ct. App. 1986); State v. Harrison, 533 P.2d 1143, 1144 (Ariz. 1975); In re Clayton, 748 P.2d 401, 402-03 (Idaho 1988); State v. Mitchell, 498 N.W.2d 691, 693-94 (Iowa 1993); State v. Vestuba, 840 P.2d 511, 514 (Kan. 1992), overrulled on other grounds, State v. Fields, 847 P.2d 1280, 1286 (1993); Commonwealth v. Simigliano, 694 N.E.2d 341, 348 (Mass. 1998); State v. Pinkham, 565 A.2d 318, 319-20 (Me. 1989); State v. Parker, 503 A.2d 809, 811-13 (N.H. 1985); State v. Cryan, 727 A.2d 93, 95-7 (N.J. Super. Ct. App. 1999); State v. Martinez, 615 A.2d 279, 281 (N.J. Super. Ct. App. Div. 1992); Apodaca v. State Tax & Revenue Dept., 884 P.2d 515, 516-17 (N.M. Ct. App. 1994); State v. Reynolds, 868 P.2d 668, 670-71 (N.M. Ct. App. 1993); Provo City v. Warden, 844 P.2d 360, 362-65 (Utah Ct. App. 1992), aff'd, 875 P.2d 557 (Utah 1994); State v. Marcello, 599 A.2d 357, 358 (Vt. 1991); Barrett v. Commonwealth, 447 S.E.2d 243, 245-46 (Va. Ct. App. 1994) (upon reh'g, en banc); State v. Chisholm, 696 P.2d 41, 42-3 (Wash. Ct. App. 1985). These decisions are based on the idea that police officers serve many roles that are not directly related to criminal law enforcement. See, e.g., Dunbar, 470 F. Supp. at 707 ("It would be too extravagant to contend that a benign purpose of rendering assistance could never justify the stop of a motorist").

The Court of Appeals suggested that under legal authority from this Court, an officer cannot detain an individual unless he suspects him of some type of criminal activity. I agree with the majority that we should not read our precedent so narrowly. An officer's responsibilities in his role as community caretaker are not limited to those duties involving the investigation of crimes. In this vein, the Legislature has used broad language to define the "duties" of Texas peace officers. See Tex. Crim. Proc. Code Ann. art. 2.13 (Vernon 1977) ("It is the duty of every peace officer to preserve the peace within his jurisdiction. To effect this purpose, he shall use all lawful means"). Based on this language, it seems reasonable to conclude that Texas peace officers are charged with public safety duties that extend beyond crime detection and investigation:

The policeman, as a jack-of-all-emergencies, has "complex and multiple tasks to perform in addition to identifying and apprehending persons committing serious criminal offenses"; by default or design he is also expected to "aid individuals who are in danger of physical harm," "assist those who cannot care for themselves," and "provide other services on an emergency basis."

3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 5.4(c) (3d ed. 1996) (quoting ABA Standards for Criminal Justice 1-1.1(b), 1-2.2 (2d ed. 1980)).

The majority is correct to point out that the Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), acknowledged and welcomed this additional role for local police officers. There, the Court wrote:

Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

Id. at 441, 93 S. Ct. at 2528; see also Terry v. Ohio, 392 U.S. 1, 13, 88 S. Ct. 1868, 1875, 20 L. Ed. 2d 889 (1968) ("Encounters are initiated by the police for a wide variety of purposes, some of which are wholly unrelated to the desire to prosecute for crime"). This rationale, which supported the search of an impounded vehicle in Cady for a missing pistol, also supports an officer's legitimate role as a public servant with a duty to assist those in distress and maintain and foster public safety on Texas' roads and highways. Neither Terry nor any of this Court's opinions interpreting the Fourth Amendment exclude the possibility that an officer may stop an individual traveling on a public highway for reasons which do not involve suspicion of criminal activity.(3)

Nevertheless, just because an officer has no suspicion of criminal activity when he effectuates such a stop does not mean that the Fourth Amendment is not implicated. "It is surely anomalous to say that the individual . . . is fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior." Camara v. Municipal Court, 387 U.S. 523, 530, 87 S. Ct. 1727, 1731, 18 L. Ed. 2d 930 (1967) (footnote omitted); see also Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660 (1979) ("[S]topping an automobile and detaining its occupants constitute a 'seizure' within the meaning of the Fourth and Fourteenth Amendments, even though the purpose of the stop is limited and the resulting detention is quite brief") (citations omitted). Thus, a "welfare" or "safety" stop, which qualifies as a "seizure" within the meaning of the Fourth Amendment, must not offend the constitutional proscription against unreasonable searches and seizures.

Whether or not a given stop is reasonable "depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S. Ct. 2574, 2578-79, 45 L. Ed. 2d 607 (1975) (citations omitted); see also Prouse, 440 U.S. at 654, 99 S. Ct. at 1396 ("[T]he permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests") (footnote omitted).(4) In measuring the weight of the public interest, the first step involves an inquiry into whether the officer was performing a bona fide community caretaking or public safety function. See Warden, 844 P.2d at 364. In other words, a court should examine whether the purpose expressed by the officer for the stop is consistent with his legitimate role as community caretaker. Furthermore, the officer's proffered justification must be supported by "specific and articulable facts." Terry, 392 U.S. at 21, 88 S. Ct. at 1880.

Once a legitimate public interest has been identified to justify the stop, and that interest is supported by objective facts and circumstances, it must be balanced against the resulting interference with an individual's liberty. The liberty interest implicated in a so-called "welfare stop" is similar to that implicated by the random stops condemned by the Supreme Court in Prouse. "Both of these stops generally entail law enforcement officers signaling a moving automobile to pull over to the side of the roadway, by means of a possibly unsettling show of authority. Both interfere with freedom of movement, are inconvenient, and consume time. Both may create substantial anxiety." Prouse, 440 U.S. at 657, 99 S. Ct. at 1398.

The difficult question, then, is one the majority declines to answer -- that is, whether the stop in the instant case was reasonable in light of all the facts and circumstances and in light of the interests of both the State and the appellant. Aiding a citizen who is in need of medical attention is a valid public interest.(5) However, this case presents facts which, taken as a whole, do not support a reasonable belief that appellant was in need of such immediate aid. The only sign of distress shown by appellant was that he vomited. That minimal level of distress is further offset by other facts presented in the record. For instance, appellant was a passenger in a vehicle being driven safely and lawfully and which carried two other occupants apparently able to render assistance. Furthermore, there is no indication in the record that any of the vehicle's occupants were seeking assistance -- they neither made any gesture that could be interpreted by Officer Tomlinson as requesting help nor were they driving in a manner that might suggest an emergency.

In these circumstances appellant's privacy interests under the Fourth Amendment outweigh the State's interest in rendering aid. Although the "judicial scales are not well calibrated to compare the slight governmental and privacy interests on either side of the balance in this case," that balance should be struck in favor of privacy for at least two reasons. Dunbar, 470 F. Supp. at 708. First, "[t]he policy of the Fourth Amendment is to minimize governmental confrontations with the individual." Id. That policy is hindered by allowing police officers to stop vehicles, absent any suspicion of criminal activity, simply because a passenger was observed throwing up. Second, the risk of subterfuge on these facts is real. Id. However well-intentioned Deputy Tomlinson was in this case, the exception should be reserved for circumstances where police intervention is clearly necessary.

Deputy Tomlinson's actions were unreasonable under the standards mandated by the Fourth Amendment. I would affirm the judgment of the Court of Appeals. I dissent.


Delivered: December 15, 1999


1. The State acknowledges this point in its brief and properly asks this Court to review the reasonableness issue on the merits. See State's Brief in Support of Petition for Discretionary Review at 8.

2. The majority seems to conclude that Cady v. Dombrowski, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973), is, by itself, dispositive of this issue. Specifically, the majority makes the broad assertion that in Cady, "the Supreme Court . . . recognized a community caretaking function of law enforcement as a reasonable exception to the Fourth Amendment's warrant requirement." Ante, at __, slip op. at 4. Cady, however, dealt only with the search of an impounded vehicle for a weapon after police had otherwise validly seized the vehicle itself. See Colorado v. Bertine, 479 U.S. 367, 107 S. Ct. 738, 93 L. Ed. 2d 739 (1987) (citing Cady community caretaking doctrine as referring "to police caretaking procedures designed to secure and protect vehicles and their contents within police custody"); South Dakota v. Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976) (describing Cady community caretaking function as taking vehicles into custody that might "jeopardize public safety and the efficient movement of vehicular traffic"); see also Barrett v. Commonwealth, 447 S.E.2d 243, 247 (Va. Ct. App. 1994) (Elder, J., dissenting) (noting distinction between facts of Cady and those of an public assistance stop). The instant case, on the other hand, presents us with a stop of a moving vehicle for the purpose of ensuring the welfare of one of the vehicle's passengers. A "search" of a validly impounded vehicle and a "seizure" of a moving vehicle which is not associated with any criminal activity are clearly two different things. The Court of Appeals appeared to recognize this distinction and declined to extend the holding of Cady without guidance from this Court. See Wright, 959 S.W.2d at 358 (citing Rheinlander v. State, 888 S.W.2d 917, 918-19 (Tex. App.--Austin 1994), pet. dism'd, permanently abated, 918 S.W.2d 527, 528 (Tex. Crim. App. 1996)). Like the majority, I ultimately conclude that an officer may lawfully stop a vehicle in her capacity as a "community caretaker" under the proper set of circumstances. See infra, at __, slip op. at 6. Unlike the majority, however, I conclude that Cady is only part of a complete legal analysis, and is not by itself the answer to the question presented.

3. I am troubled by the dicta in the majority's opinion suggesting that a community caretaking exception might also be applicable in circumstances involving "private, fixed property, or stops of persons located thereon." See ante, at __, slip op. at 6-7. We are not called upon in this case to decide whether police officers are authorized to enter real property on less than emergency circumstances. See Brimage v. State, 918 S.W.2d 466, 500-02 (Tex. Crim. App. 1996) (plurality op.).

4. The majority fails to recognize that the Fourth Amendment mandates this form of balancing test. See ante, at __, slip op. at 6. Instead, the majority simply states, without any citation to authority, that "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." Id.

5. Deputy Tomlinson offered another explanation for the stop -- that the car "could have had a blow out, lost control. [Appellant] could have been smashed into a pole or something like that. The car could have gone off into a ditch, rolled over on top of him, broke his back." In light of the facts of this case this justification is far too speculative to outweigh appellant's privacy interests.