Andrea L. Westerfeld
Police officers are involved in far more than just the enforcement of criminal law. They are also expected to “aid individuals who are in danger of physical harm, protect the rights to speak and assemble, facilitate the movement of people and vehicles, assist people who cannot care for themselves, resolve conflict, and deter crime through their conspicuousness.”1 These are duties distinct from crime-fighting, but sometimes the officer will find crime while engaged in one of his other duties. The community caretaking exception was created to help resolve this conflict, and the Court of Criminal Appeals recently re-examined the scope of this exception in Byram v. State.
On the Fourth of July in 2013, a Fort Worth police officer was monitoring the bar district downtown.2 Officer Figueroa was stopped at a red light when an SUV pulled up in the left lane next to him. The officer could smell alcohol from the SUV through his open window, and he saw a motionless woman hunched over in the front passenger seat. Cameron Byram, the driver, stared straight ahead and did not respond even when the officer yelled at him to ask if the passenger was OK. Byram drove away when the light turned green.
Officer Figueroa pulled the SUV over and immediately checked on the passenger. The exact sequence of events after Officer Figueroa pulled Byram over was not clear in the record, but he testified that he had no real reason to think the driver was intoxicated when he pulled the SUV over and that he was more concerned with the passenger. She was “barely conscious,” had vomited all over the passenger side of the SUV, and seemed to have some sort of medical problem. The officer called an ambulance for her, but ultimately, she refused medical assistance. Officer Figueroa determined that Byram was intoxicated and arrested him.
The trial court denied Byram’s motion to suppress, and he pleaded guilty. On appeal, he challenged the traffic stop as an unreasonable detention. The Fort Worth Court of Appeals agreed and reversed, finding that the community caretaking exception did not apply and there was not reasonable suspicion of criminal activity.
The community caretaking exception
As part of his duty to serve and protect, a peace officer may stop and assist an individual whom a reasonable person would believe is in need of help.3 There is a two-step test before the community-caretaking exception can apply:
1) whether the officer’s primary purpose was to render aid, not to investigate possible criminal action, and
2) whether the officer’s belief that the person needed help was reasonable.4
The first part of the test is objective, and it relies almost entirely on the trial court’s determination of credibility.5 If the officer admits he was not primarily motivated by concern that the person needed aid, then community caretaking does not apply, but if the officer says community caretaking was his primary motivation, then the trial court must determine the officer’s credibility.
For the second part of the test, courts consider four non-exclusive factors to determine the reasonableness of an officer’s belief that a person needs help:
1) the nature and level of the distress exhibited;
2) the location of the person;
3) whether the person was alone or had access to help other than the officer; and
4) to what extent the person presented a danger to himself or others if not aided.6
The first factor is usually the most important, but a lower level of distress might be rendered more serious by the other factors.7
Importantly, these factors are merely useful considerations, not elements.8 One factor may be missing entirely, but the other factors can make up for it. The ultimate test is simply whether the officer’s belief that the person needed help was “reasonable.”
A finding of reasonableness
The Court of Criminal Appeals found that Officer Figueroa was reasonable in concluding that the passenger he observed was in need of assistance. She was hunched over and motionless, the SUV smelled strongly of alcohol, and they were in the bar district on the Fourth of July. The lower court focused on the fact that the woman was not alone in the SUV and that they were on a busy street with several hospitals nearby, but the Court of Criminal Appeals noted that the driver appeared unconcerned and ignored both his passenger and the shouting police officer. Even though there were hospitals nearby, Byram was clearly not trying to get his passenger to one, showing that the passenger was not likely to get assistance without the officer’s intervention.
The Court also noted that the very fact Byram was driving with an incapacitated passenger and ignoring the shouting police officer suggested another danger—he could have had “a nefarious plan for his passenger” and was trying to avoid the police.9 This is significant because the Court is considering multiple levels of potential distress. An officer’s concern for a person does not have to be limited solely to the most obvious physical danger. The potential that the person might be the victim of criminal activity is another type of distress that can be considered.
In all, the Court found that the passenger’s incapacitation, her location in an unconcerned driver’s vehicle in the middle of the bar district on the Fourth of July, and the driver’s behavior all indicated a level of distress “in which we would expect a caring police officer to intervene.”10 The stop was upheld as a proper use of the community caretaking exception.
A possible challenge for the future
Overall, Byram was a fairly straightforward application of the two tests for community caretaking, with some good explanations of the rules but no real new information. What makes the case most interesting is a footnote offering a glimpse into a possible challenge for the future. In Footnote 5, the Court notes that a 2011 U.S. Supreme Court opinion casts doubt on whether the first part of the test should still be required.
In Ashcroft v. al-Kidd, the Supreme Court discussed the applicability of a material witness warrant against the defendant.11 It dismissed the defendant’s argument that he was actually being investigated as a terror suspect and the material witness claim was a mere pretext. The Supreme Court noted that a Fourth Amendment reasonableness inquiry is predominantly an objective one. Citing to past precedent of Whren v. United States,12 the Supreme Court stated that it “swept broadly to reject inquiries into motive generally.” Apart from limited exceptions,13 the Court has “almost uniformly rejected invitations to probe subjective intent.”14
The Byram court noted that it has never analyzed whether al-Kidd’s emphasis on a purely subjective analysis of reasonableness means that community caretaking cases should no longer examine the officer’s “primary motivation” in stopping.15 And Byram was not the case to do so, as the officer testified that he was concerned about the passenger needing assistance, not the driver being intoxicated, and the trial court found that testimony credible. Thus, that part of the test was easily met and only the second factor of reasonableness was at issue.
However, the Court of Criminal Appeals has clearly signaled that it may need to re-examine the rule in light of al-Kidd in the future. Any prosecutor with a case with a strong argument for community caretaking but for the officer’s testimony that he was not primarily motivated by the desire to help—or with a judge who finds the officer’s testimony to that effect not credible—would be wise to raise al-Kidd and Byram. An officer may be equally motivated by a desire to help and a belief that criminal activity is afoot, and that should not prevent the State from relying on the community caretaking exception. Byram has signaled that the subjective portion of the test should, at the least, be re-examined in light of al-Kidd and perhaps should be removed entirely.
1 Byram v. State, No. PD-1480-15 (slip op.), at 1-2 (Tex. Crim. App. Jan. 25, 2017).
2 Id. at 2-4.
3 Wright v. State, 7 S.W.3d 148, 151 (Tex. Crim. App. 1999).
4 Gonzales v. State, 369 S.W.3d 851, 854-55 (Tex. Crim. App. 2012).
5 Id. at 855.
6 Corbin v. State, 85 S.W.3d 272, 277 (Tex. Crim. App. 2002).
7 Gonzales, 369 S.W.3d at 855.
8 Byram, slip op. at 8.
9 Id. at 10.
10 Id. at 11.
11 Ashcroft v. al-Kidd, 563 U.S. 731, 744 (2011).
12 Whren v. United States, 517 U.S. 806, 814 (1996).
13 Special needs and administrative search cases were the only “limited exceptions” the Court listed. Al-Kidd, 563 U.S. at 737.
14 Id. at 737.
15 Byram, slip op. at 7 n.5.