Officers pursuing a burglar down streets and into backyards was directed to a house by an unidentified person, and they entered it with a dog after allegedly announcing. No burglar, but the homeowner who was not pleased, and he got arrested and assaulted by the officers. There is no qualified immunity for the entry. It was based on the community caretaking function, and this case is not within the “heartland” of that exception to the warrant requirement. A reasonable officer should have known this entry was unlawful. Matalon v. Hynnes, 2015 U.S. App. LEXIS 20008 (1st Cir. Nov. 18, 2015):
Even on this favorable assumption, O’Neill’s claim founders. In MacDonald — the case upon which O’Neill primarily relies — local police responded to a telephone call from a person concerned that her neighbor’s door was open though he was not home. See id. at 10-11. Unable to contact the resident, the police entered the home and, once inside, found evidence of marijuana cultivation. See id. at 11. We concluded that the officers were entitled to qualified immunity because their entry into the home was arguably within the scope of the community caretaking exception. See id. at 15.
Wresting from their contextual moorings our statements in MacDonald that the doctrine was “nebulous” and surrounded by “rampant uncertainty,” id. at 14, O’Neill submits that this lack of certitude shields her actions. But this uncertainty does not assist O’Neill’s cause: while the parameters of the community caretaking exception are nebulous in some respects (such as whether the exception applies at all to residential searches), the heartland of the exception is reasonably well defined. Some attempts to invoke the exception plainly fall outside this heartland. This is such a case. As we explain below, a reasonable officer standing in O’Neill’s shoes should have known that her warrantless entry was not within the compass of the community caretaking exception and, thus, that her intrusion into the plaintiff’s home abridged his constitutional rights.
The community caretaking exception is distinguished from other exceptions to the Fourth Amendment’s warrant requirement because it “requires a court to look at the function performed by a police officer” when the officer engages in a warrantless search or seizure. Hunsberger v. Wood, 570 F.3d 546, 554 (4th Cir. 2009). The Cady Court took pains to define community caretaking functions as being “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” 413 U.S. at 441. Cases that do not satisfy this requirement fall outside the heartland of the community caretaking exception, and it is therefore not surprising that the courts that have addressed the exception have stressed the separation between the police’s community caretaking functions and the normal work of criminal investigation. See, e.g., Hunsberger, 570 F.3d at 554; United States v. Quezada, 448 F.3d 1005, 1007 (8th Cir. 2006); United States v. Williams, 354 F.3d 497, 508 (6th Cir. 2003); People v. Ray, 21 Cal. 4th 464, 88 Cal. Rptr. 2d 1, 981 P.2d 928, 938 (Cal. 1999) (plurality opinion); People v. Davis, 442 Mich. 1, 497 N.W.2d 910, 920 (Mich. 1993); State v. White, 141 Wn. App. 128, 168 P.3d 459, 466-67 (Wash. Ct. App. 2007); cf. State v. Deneui, 2009 SD 99, 775 N.W.2d 221, 241 (S.D. 2009) (concluding that, even though the initial arrival at the home was connected to a potential criminal investigation, the entry into the home was reasonable because the officers entered the home “not as part of a criminal investigation, but in pursuance of their community caretaking function”).
Here, the record establishes beyond hope of contradiction that O’Neill was engaged in a quintessential criminal investigation activity — the pursuit of a fleeing felon in the immediate aftermath of a robbery — when she ordered the search of the plaintiff’s home. O’Neill testified at trial that she arrived at the plaintiff’s residence after being directed there by a witness to the crime and that she believed the suspect had fled into the dwelling. Thus, her actions fall far beyond the borders of the heartland of the community caretaking exception.
. . .
In sum, the contours of both the plaintiff’s right to enjoy the sanctity of his home and the heartland of the community caretaking exception were sufficiently clear to alert O’Neill that her plan of action — a warrantless entry — would infringe the plaintiff’s constitutional rights. Put another way, an objectively reasonable officer should have known that a warrantless entry into the plaintiff’s home could not be effected on the basis of the community caretaking exception. Though the precise dimensions of the community caretaking exception are blurred, that circumstance does not mean that every attempt to resort to the exception must be regarded as arguable. See DeMayo v. Nugent, 517 F.3d 11, 18 (1st Cir. 2008). What matters here is that the exception is sufficiently defined to place O’Neill’s conduct well outside its heartland and, thus, to render qualified immunity inapplicable.
We hasten to add that refusing to extend the community caretaking exception to ongoing manhunts does not unduly cramp the conduct of officers responding to potentially dangerous situations in the course of a criminal investigation. After all, there is a recognized exception to the warrant requirement for “exigent circumstances,” which applies when “there is such a compelling necessity for immediate action as will not brook the delay of obtaining a warrant.” …
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)