A car is parked on the shoulder of a freeway late at night. It is not impeding traffic and nobody has called the police about the car. It does not appear to be damaged and there are not any people standing outside of it. The weather is good.
A police officer pulls off to the berm and parks behind the car. She activates her overhead lights, gets out of her cruiser, and walks toward the driver’s side window. She does not have any reasonable suspicion that the driver has broken any law. She has not seen or been made aware of any signs of distress or need for assistance but it is late and dark.
Has a seizure (investigatory detention) occurred? If so, was it justified under the Fourth Amendment? It is important to know because moments later the officer sees evidence of drug possession and drug trafficking in plain view and evidence of intoxication on the part of the driver.
The driver is arrested and charged with OVI and drug offenses. He moves to suppress the evidence of the drugs and all other evidence arising out of the stop. His ground is that the stop occurred when the police officer pulled up behind him and activated her lights, and it was effected without reasonable suspicion of any crime and absent any other exception to the warrant requirement.
The Fourth Amendment – Seizure
” The right of the people to be secure in their persons…against unreasonable … seizures, shall not be violated, and no Warrants shall issue, but upon probable cause…”
Our Constitution forbids only unreasonable seizures. A determination of whether a seizure is reasonable requires balancing the public interest in conducting the seizure against a person’s right to be free from arbitrary intrusions by the police. Terry v. Ohio, 392 US 1 (1968).
Further, a person is considered seized “only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.” In evaluating those circumstances, the critical inquiry is whether the officer, “by means of physical force or a show of authority, ” has restrained a citizen’s freedom of movement. United States v. Mendenhall, 446 US 544 (1980)
The issue of whether a person has been seized is distinct from whether that seizure is reasonable. The fact that a seizure might be deemed reasonable pursuant to an exception to the warrant requirement does not mean a seizure did not occur. For example, a consensual encounter is not a seizure so it does not have to meet any test of reasonableness. On the other hand, implicit in any community caretaking case is the fact that there was a seizure within the meaning of the Fourth Amendment.
Emergency lights on police cars serve important safety purposes, including ensuring that the police car is visible to traffic and signaling to a stopped motorist that it is a police officer who is approaching, as opposed to Ted Bundy.
But the realities of life, particularly the relationship between ordinary people and law enforcement, cannot allow us to pretend that a reasonable person would not interpret the activation of overhead lights on a police car as a signal that he or she is not free to leave. For those who like to pretend, consider R.C. 2921.331. That section makes it a crime to fail to comply with any lawful order or direction of any officer invested with authority to direct, control, or regulate traffic. It also makes criminal operating a car so as to willfully flee a police officer after receiving a visible or audible signal from the officer to bring the person’s car to a stop. The fact that drivers risk being charged with a misdemeanor or a felony if they incorrectly assume that they are free to leave after a police car pulls behind them with its emergency lights activated supports the conclusion that a reasonable person in the driver’s shoes would not feel free to leave. The activation of those lights under the above circumstances is a show of authority that would indicate to a reasonable person he or she was not free to leave.
Since the driver in the example was seized and subjected to an investigative detention unsupported by any reasonable suspicion of criminal activity, it must then be determined whether it was otherwise justified under the Fourth Amendment.
Community Caretaking Doctrine
The United States Supreme Court has recognized a community caretaking exception to the warrant requirement. Cady v Dombrowski, 413 US 433 (1973). Sometimes it is invoked under the names of emergency aid or public servant exceptions.
Under circumstances such as those contained in the example, most courts would apply a reasonableness test. That requires a police officer to point to specific and articulable facts which led him or her to believe that assistance was necessary, and an objective assessment by a court as to whether the officer’s belief was reasonable. This test accommodates the interests underlying the exception while simultaneously protecting a person’s right to be free from unreasonable seizures.
There are many reasons why a driver might pull to the side of a highway. The driver might need to look at a map, answer or make a phone call, send a text, pick something up, clean up a spill, locate something in a purse or wallet, retrieve something from the glove box, or enter an address into the car’s navigation system. Irrespective of the time of day, pulling to the side of the road to perform any of these activities is encouraged as a distraction while driving might be catastrophic.
In addition to the reasonableness requirement, police caretaking activity must be independent from the detection, investigation and acquisition of criminal evidence. Finally, even if the caretaking activity is justified the action of the police must be tailored to rendering assistance to mitigating the peril, and further action will be evaluated by determining whether it was justified by a reasonable belief of criminal activity.
Seizure Not Justified Under Community Caretaking Doctrine
Based on the example the officer will likely be unable to articulate specific and objective facts that would reasonably suggest the driver needed assistance. The officer did not receive a report of a motorist in need of help, and did not observe anything that suggested a problem with the driver’s car. Moreover, it was dark, but the weather was not inclement, and the driver had not activated the hazard lights or otherwise signaled any need for help.
The driver was seized and subjected to an investigative detention. The seizure was not justified under the community caretaking (public servant) exception to the warrant requirement.