By John M. (Jack) Collins, General Counsel, Massachusetts Chiefs of Police Association, Grafton, Massachusetts
rdinarily, police officers need at least reasonable suspicion to stop citizens on foot or in a motor vehicle. However, there are certain interactions between police officers and citizens that do not require legal justification, as local police officers are charged with community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to violation of any criminal statute.1 The decision of the police to make a well-being check must be reasonable in light of an objective basis for believing that an individual’s safety and well-being may be in jeopardy; that concern extends, in certain circumstances, to the safety of the public as well.2
There are limits to the situations in which an officer may stop citizens. For example, an officer’s reasonable belief that a motorist is lost, in the absence of complicating elements such as safety hazards, illness, suspicion of crime, or the like, is not sufficient to justify a seizure (stopping of a motor vehicle).3 However, under the “community caretaking doctrine,” police officers are allowed, without reasonable suspicion of any criminal activity, to approach and detain citizens for community caretaking purposes.4 The following situations are examples of such permissible stops:
- Pulling behind an operator’s car, which was parked at 11:35 p.m. in the breakdown lane on a desolate highway with its directional light flashing, even though the officer had activated his vehicle’s blue lights5
- Checking on motorists parked in rest areas, especially in winter,6 or opening an unlocked door of a parked vehicle when the officer is acting out of concern for the well-being of the person inside7
- Observing an apparently nonconforming motorcycle helmet8
- Notifying a driver of nearby hazardous conditions and to stop his incessant honking9
- Observing furniture hanging out the back of a vehicle10
- Observing an operator driving slowly on the shoulder with a flashing turn signal11
- Notifying a driver that a hat might blow out of the back of the driver’s pickup truck12
The following have not qualified, however:
- Legally parking where youth often consume alcohol13
- Telling an operator information he requested two weeks earlier14
- Observing a driver that remained motionless at a stop sign for 45–60 seconds and began moving away when the officer approached15
Suspicion of Criminal Activity
The U.S. First Circuit Court has ruled that officers may observe and approach a suspect in a parked vehicle without making a constitutionally cognizable “stop” until they restrict the suspect’s freedom.16 In that case, the court concluded that an officer was justified in making an investigatory stop of a suspect who appeared to be engaged in drug-related activity. 17 The suspect was alone in the car, after midnight, in an area frequently used for illegal drug activities; was leaning over the center console, which was slightly illuminated; and appeared to be attempting to hide something when he saw the officer approaching. The court ruled that the officer acted reasonably in ordering the suspect to freeze and in pulling the suspect from the vehicle when the suspect ignored the order and lunged toward the passenger’s side of the car in what the officer reasonably believed to be an attempt to obtain a weapon.
An investigatory check of a parked vehicle, regardless of its limited purpose and brevity, is an intrusion on privacy rights.18 When troopers, as part of a city’s “zero-tolerance team,” noticed a motor vehicle idling with its lights off in an unlit parking lot used by two restaurants, one of which was still open, they were not justified in activating their lights and blocking the vehicle’s exit with their cruiser.19 The pat search, which produced a gun and ammunition, was illegal, since there was no illegal or suspicious conduct justifying the stop or threshold inquiry. The fact that the car’s lights were not on, or that its muffler sounded a little loud, did not justify the stop. Had the vehicle in that condition entered the street from the parking lot, its driver, under Massachusetts law, would have committed “civil motor vehicle infractions,” not crimes. The officers’ belief that the operator would soon drive on the roadway and thus commit a civil motor vehicle infraction did not warrant an investigatory stop.
An officer may check on a stopped motor vehicle in the breakdown lane of a highway.20 It was after 10:30 p.m. on a high-speed highway, and the defendant had pulled over in a location normally associated with disabled vehicles but had left the motor running and the headlights on. It was permissible, in these circumstances, for the trooper to approach and check the stopped motor vehicle out of concern both for the occupants in the stopped car and for the public using the roadway. That the trooper might have harbored a subjective belief, even a compelling one, that the operator was engaged in illegal behavior does not affect a court’s decision. “[A]n officer’s motive [does not] invalidate objectively justifiable behavior.”21 Nor does activation of a cruiser’s blue lights “change the nature of the encounter into a seizure.”22
The stop of a truck as it crossed into the right emergency lane of a highway, based on the officer’s suspicion that the operator was impaired by alcohol or lack of sleep, did not meet the reasonableness test of the Fourth Amendment.23 The actions of a trooper in walking up to a parked vehicle at a roadside rest area, knocking on the vehicle’s window, shining his flashlight inside, and asking whether the occupant, who was sleeping in the vehicle, was “all set” did not intrude on the defendant’s constitutionally protected rights under the Fourth Amendment, as would require justification.24 The trooper neither asserted nor implied that the occupant was not free at that moment to ignore the inquiry into his well-being, and nothing indicated that the trooper “specifically targeted” the vehicle for investigation.25
When a trooper arrested a motorist for operating under the influence and operating a motor vehicle negligently so as to endanger the public, the community caretaking doctrine was ruled not to apply.26 There the basis for the stop was an anonymous motorist’s report that a truck was operating on the wrong side of the interstate highway. The trooper used the reported plate registration number and proceeded to the operator’s residence. He observed the truck driving away but not improperly. He stopped the vehicle, had the operator perform a field sobriety test, and concluded he had been operating under the influence. Because the reasonable inference was that the trooper was engaged in “the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute,”27 the court ruled that the community caretaking function could not be used to justify the stop.
Reported Apartment Water Leak
A similar “community caretaking” result was reached in a case where firefighters responded to an apartment water leak call, the water coming through the ceiling from an apartment above, in which two dogs were barking. The animal control officer was called, who, in turn, called for police backup before making entry into the upstairs apartment, which is standard operating procedure. When all these municipal employees climbed a fire escape to the upstairs apartment, a bong was spotted, through a window, inside one of its rooms. The police officer present then called for a detective and superior officer. The police personnel entered, searched a closet, and found marijuana plants growing in an aquarium therein. That apartment’s occupant was out at work. The court found that there were no exigent circumstances and that the police should have posted guard and obtained a search warrant before searching the apartment for evidence. All seized evidence was suppressed.28
Reports of a Gun or of Gunfire
When a citizen reports that shots have been fired or that a person is in possession of a clearly illegal firearm such as a sawed-off shotgun, courts are more inclined to rule that the community caretaking doctrine will justify an investigatory stop. This was the case when officers stopped a motor vehicle for an investigative inquiry when a disinterested citizen had reported that a front seat passenger in the vehicle had an apparent sawed-off shotgun in his possession, which by itself posed an imminent threat to public safety.29 ■
1Commonwealth v. McDevitt 57 Mass. App. Ct. 733, 786 N.E. 2d 404 (2003); Cady v. Dombrowski, 413 U.S. 433, 441, 93 S. Ct. 2523, 37 L. Ed. 2d 706 (1973); Commonwealth v. Evans, 436 Mass. 369, 372, 764 N.E. 2d 841 (2002).
2Id.; see Commonwealth v. Murdough, 428 Mass. 760, 762, 704 N.E. 2d 1184 (1999).
3Commonwealth v. Smigliano, 427 Mass. 490, 694 N.E. 2d 341 (1998); Commonwealth v. Canavan, 40 Mass. App. Ct. 642, 667 N.E. 2d 264 (1996). See also United States v. Dunbar, 470 F. Supp. 704 (1979).
4Commonwealth v. Murdough, 44 Mass. App. Ct. 736, 694 N.E. 2d 15 (1998); S.C., 428 Mass. 760, 704 N.E. 2d 1184 (1999); quoting from Cady, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706.
5M.G.L.A. c.276, sec. 1; Commonwealth v. Hill, 51 Mass. App. Ct. 598, 747 N.E. 2d 1241 (2001).
6Murdough, 428 Mass. 760, 704 N.E. 2d 1184.
7Commonwealth v. Leonard, 422 Mass. 504, 663 N.E. 2d 828 (1996).
8Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486 (9th Cir. 1996).
9United States v. King, 990 F.2d 1552 (10th Cir. 1993).
10State v. Oxley, 127 N.H. 407, 409 (1985).
11State v. Goetaski, 209 N.J. Super. 362 (App. Div.), cert. denied, 104 N.J. 458 (1986). But see Barrett v. Commonwealth, 250 Va. 243 (1995) (same without turn signal).
12State v. Chisholm, 39 Wash. App. 864 (1985).
13Ozhuwan v. State, 786 P.2d 918 (Alaska Ct. App. 1990).
14McDougal v. State, 580 So. 2d 324 (Fla. Dist. Ct. App. 1991).
15State v. DeArman, 54 Wash. App. 621 (1989).
16United States v. Stanley, 915 F.2d 54 (1st Cir. 1990).
18Commonwealth v. King, 389 Mass. 233, 449 N.E. 2d 1217 (1983), citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct.
1868, 20 L. Ed. 2d 889 (1968); Commonwealth v. Helme, 399 Mass. 298, 503 N.E. 2d 1287 (1987).
19Commonwealth v. Whitehead, 49 Mass. App. Ct. 905, 728 N.E. 2d 335 (2000).
20McDevitt, 57 Mass. App. Ct. 733, 786 N.E. 2d 404; Cady, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706.
21Murdough, 428 Mass. at 762, 704 N.E. 2d 1184, quoting from Murdough, 44 Mass. App. Ct. 736, 740, 694 N.E. 2d 15.
22Evans, 436 Mass. at 373, 764 N.E. 2d 841.
23United States v. Gregory, 79 F.3d 973 (10th Cir. 1996).
24Commonwealth v. Eckert, 431 Mass. 591, 728 N.E. 2d 312 (2000).
26Commonwealth v. Lubiejewski 49 Mass. App. Ct. 212, 729 N.E. 2d 288 (2000).
27Cady, 413 U.S. 433, 93 S. Ct. 2523, 37 L. Ed. 2d 706.
28Commonwealth v. Sondrini, 48 Mass. App. Ct. 704, 724 N.E. 2d 748 (2000).
29Commonwealth v. Alvarado, 427 Mass. 277, 693 N.E. 2d 131 (1998).