31 August 2004

Virginia Court of Appeals 17 August 2004

Kyer v. Commonwealth - Subject: The Community Caretaker Exception.

(Facts) Police arrive at a house where they believe a participant in a breaking and entry lives. They find the front door open but no lights on inside the house or outside. Because the person they were looking for had supposedly taken part in a B&E and lives in this house they believe someone had broken into the house. They knock, announce themselves and enter. While making a protective sweep of the house, all the while proclaiming their presence in loud voices, they find two people asleep. Obviously, both are wearing earplugs because they aren't awakened by all the yelling going on. However, two minutes after finding the sleepers, when an officer shines a flashlight on the lady of the house she wakes up and shortly thereafter gives the two officers who have rousted her permission to search her house. The search turns up probative evidence.

(Finding) The court finds this entry valid under the community caretaker exception.

The Scope: "[T]he community caretaker exception may only apply to those circumstances totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." It must be "factually unrelated to an intent to search for evidence of illegal activity." In fact, the collapse of the "emergency exception" into the community caretaker exception "has erred on the side of the sanctity of individuals' Fourth Amendment privacy rights, by requiring, in every case, that police officers conducting warrantless searches pursuant to these exceptions do so independently of their criminal investigatory functions."

The community caretaker exception allows police entry into homes without a warrant.

The Test: Under the totality of the circumstances, was it reasonable for the officer to believe his actions were necessary for
1) The protection of the owner's property while it remains in police custody,
2) The protection of police against claims or disputes concerning lost or stolen property, or
3) Protection of the public and police from physical danger.

[comment] Oh, come on . . . Does any of that make sense to anyone who's not trying to cover for a bad search? There's not even any evidence given that the door was pried open or that a window was broken.

Case law in Virginia pretty clearly lays out that an open door is not an invitation for an officer to enter and that everything from the crossing of the threshold on is fruit of the poisonous tree. There are no exigent circumstances because there is no indication that the suspect is actually in the house. How then do you justify what the officers did? You trot out the community caretaker excuse. The problem is that this excuse doesn't even work under the standards laid out in this decision.

The search was not "totally divorced" from an investigation. Even assuming that the story woven is accurate and the occupants were deaf while they slept, the entire purpose of being at that address is investigation. They are there to find a suspect and immediately upon rousting the occupants they secure permission to search more thoroughly. These are not officers who drove down a street and saw a door suspiciously open; they were there to get their suspect.

Look, the community caretaker exception has its very, very, very limited real world applications. It's for the time when an officer stops to help a lady with a flat tire and sees 10 kilo of marijuana under the spare tire when he pulls it out for her. It's for the officer driving down the street who sees a store window broken and walking around the building finds a stolen car in the back. It may even be for the guy walking the beat who sees the Peterson's door wide open, realizes this is unusual, hears no answer when he yells in the door, and finds 16 year old Peterson Jr. passed out in the living room with a 6 pack in front of him and a beer in hand. The key to a real community caretaker exception is that the evidence is stumbled upon. And it makes sense in that context; it would be asinine to expect police to walk away from evidence just because they stumbled over it without the intent of finding it.

The problem is that it is also one of the most abused excuses seen in courts. Rarely have I seen it in one of the types of cases above. Rather, it is a fallback excuse used in cases like this wherein the search is obviously bad, the evidence must be excluded, and there's got to be some reason to get around that pesky 4th Amendment. There is no doubt that the approach to the house was purposeful. They meant to get their suspect and/or any incriminating evidence they could find. This was all part of a criminal investigation and the only way that can be ignored in considering the "totality of the circumstances" is to shear away the reason the police were there to begin with and the activities the police undertook the moment the search of the house for people was completed.

Cutright v. Commonwealth - Subject: Whether the unavailability of more than one lab to do an independent blood analysis requires the dismissal of a DUI or the exclusion of the certificate of analysis.

(Facts) Defendant gets arrested for a DUI. When the blood test is preformed he opts for a second analysis by a non-government lab. There is only one non-governmental lab which has qualified.

(Arguments) The Defense claims that the use of plural language (laboratories) and language such as "laboratory of the accused's choice" necessarily lead to the conclusion that he should have had at least two private labs to choose from and therefore the conviction should be dismissed or, in the alternative, the lab report should be suppressed. The prosecution goes outside of the criminal statutes to find a statute which states that allows the use of singular and plural forms interchangeably.

(Finding) Dismissal - The court blows past all of that and determines that the evidence was sufficient to convict even without a lab report. It will not allow a Defendant who otherwise admits guilt to profit by dismissal.

Suppression - The court does not decide whether either of the equally abstract arguments made by the two sides is correct. Instead, it rules that any failure to follow the law would have been a mere procedural error and not violative of any constitutional guarantees. Virginia will not suppress for anything less than a federal constitutional violation or a statutory requirement to suppress. Therefore, the violation is only considered as it effects the weight of the evidence and the proper remedy is to allow both sides to attempt to prove or disprove any prejudice coming from the procedural error.

No comments: