I love when cops use the “community caretaking function” as their justification for detaining, and later arresting my clients.  I really do, because it usually means I have a good chance of beating the case.  I mean, really, how often is a driver in need of a welfare check?  Not as often as police make it out to be.

What is a Detention?

A person is detained, also known as “seized,” by an officer when a reasonable person in similar circumstances would not feel free to leave, or otherwise disobey the officer’s show of authority.  A person can be legally detained under several circumstances.  However, if there is no warrant, the courts presume that the detention is unlawful.  If a warrantless detention is challenged by a defendant, it is the government’s burden to prove that the detention was lawful.

Generally, the law allows an officer to stop and detain a driver when the officer has probable cause to believe that the driver has committed a traffic violation or crime.  Probable cause is a very low level proof, but even having that low level of proof protects to public, or at least it is supposed to, from unreasonable searches and seizures and thereby a tyrannical government. It takes fearless defendants and criminal defense lawyers with balls (females too) to challenge bad stops.

So what is a welfare check?

You would be surprised at how often officers conduct an illegal stop or detention under the guise of the community caretaking function, which is also known as a welfare stop or welfare check.  Basically, when an officer resorts to using the community caretaking function to justify a seizure, there is a good chance that the officer did not believe he had probable cause to stop the person, and there is also a good chance that there were not facts to support a welfare check under the community caretaking function.

A stop must be reasonable under all circumstances.  Whether a stop is a reasonable depends on a balance between the public interest and the individual’s right to personal security and to be free from arbitrary interference from the police.  As stated above, and officer must usually have a reasonable suspicion or probable cause to detain a person.  However, the police are also entrusted with the community caretaking function.  Through the community caretaking function, officers are able to conduct welfare checks.

As part of an officer’s duty to protect and serve, an officer may stop and assist an individual whom a reasonable person, given the totality of circumstances, would believe is in need of help.  The community caretaking function is totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.  As a result, a police officer may not properly invoke his community caretaking function if he is primarily motivated by a non-community caretaking purpose.

What is the court’s role when the officer claims he used his community caretaking function to conduct a welfare stop?

First, it is your criminal defense attorney’s job to identify possible search and seizure fourth amendment violations. Next, it is your attorney’s job to either notify the prosecutor about the violation, or set the case for trial or a motion to suppress.  I rarely tell the prosecutor about the search and seizure violation because I don’t want to tell the prosecutor what is wrong with their case just so they can go coach their cop and try to fix the problem.  Prosecutors in Texas rarely dismiss cases when the police break the law, so why help them?  The court’s job is to determine whether the officer legally used the community caretaking function.  If the officer did not, then a motion to suppress will be granted, the evidence will be excluded, and your case will usually be dismissed.

How does the court determine whether the officer properly used the community caretaking function to stop the suspect?

First, the court has to determine what the officer’s primary motivation was.  Was the officer’s main reason for detaining the suspect a concern for the suspect’s welfare?  If not, then the officer violated the fourth amendment when he detained the suspect.  If the officer’s primary concern for detaining the defendant was the suspect’s welfare, the second thing the court needs to determine is whether the officer’s believe that the defendant needed help was reasonable.  This is where most welfare check cases are won and lost.

In order to determine whether an officer reasonably believes that the defendant needed help, the court is supposed to look at a list of four factors:

  1. The nature and level of 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 other than that offered by the officer, and
  4. To what extent the individual, if not assisted, presented a danger to himself or others.

The court is supposed to give the greatest weight to the first factor, while the other factors sort of give context to the first factor.

A Welfare Stop in Montgomery County.

My client, John Doe, is an 18 year old kid fresh out of high school doing what kids in his position frequently do:  smoke pot.  Most 18 year olds who aren’t in college don’t have their own place to live, so they do it in their car, which can get you in trouble. John is sitting in the driver’s seat of his car at a stop sign in his neighborhood.  According to the officer, he is sitting, and sitting, and sitting at this stop sign for several minutes with no turn signal.  It is not illegal to sit at a stop sign.  His friend is in the passenger seat.  The officer eventually drives up to John’s car and turns on his emergency lights.  On the dashcam audio, the officer says, “I’m lighting up a suspicious vehicle.”  On the offense report, the officer says, “I conducted a welfare stop to check on the well-being of the individual.”  There were absolutely no facts to support a welfare stop or the community caretaking function.  I knew, based on the offense report, that something was fishy about the stop.  After watching the video and listening to the audio, I was near certain I would win a motion to suppress because, first, the audio indicates that the officer’s primary concern was investigating a crime, and not the welfare of John.  Secondly, I was confident in a motion to suppress because my client did not exhibit any type of distress, he was located in a neighborhood with several nearby homes, he was not alone, had a cell phone, and there was nothing to indicate John was a danger to himself or others.

Being the aggressive criminal defense attorney that I am, I downloaded, printed, and highlighted some good case law to support my position.  The prosecutor, who happens to be a very cool guy and friend of mine, said, “I’ve read the offense report, if you client passes a drug test, I will dismiss the case.”  While I generally prefer to win by showing that a cop lied, my client wanted this case to be over with, and it probably would have been malpractice had I not told my client about the offer.  Luckily, he passed the drug test, just barely, and the case was dismissed.

Watch out officer, I’ll get you next time.

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