Law of Community Policing and Public Order Policing Research Paper

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It is likely impossible today to find a jurisdiction in the United States wherein a policing agency does not claim to practice community policing. Certainly the term is ubiquitous among law enforcement practitioners and scholars. The discussion around the practice for the last decade or so has not been whether to implement the approach but, rather, how exactly to implement it and the extent to which the practice is effective.

Less discussed is the relationship between law and community policing. By its very nature, community policing is focused upon patrol officers engaging in proactive conduct through exercise of discretion. Police discretion is, of course, framed and constrained by law – very typically constitutional law. However, unlike the constitutional rules that structure searches, seizures, and interrogations, the law pertaining to community policing and public order maintenance often is much more fluid. This research paper will sketch out the fundamentals of that body of law as well as document current debates.

Fundamentals

There is a great deal of variation among the definitions of community and public order policing offered by scholars, but most agree that police engagement, collaboration, and partnership with private citizens are central features. An additional key feature of community policing emphasizes willingness on the part of individual police officers to proactively engage citizens to work on neighborhood problems and to promote community safety. While internal agency policy (essentially administrative rules) may regulate street-level policing in communities and neighborhoods, very few statutory rules govern these kinds of police practices. Constitutional law also seems mostly inapposite. Of course, the Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures, and the Fifth Amendment regulates police interrogation of citizens. Together with the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment, courts have developed a muscular, detailed, and complex body of law to govern important police practices. This jurisprudence, however, is focused primarily upon police investigation of crimes. State and federal courts have recognized, though, that a large portion of police responsibilities is not related to criminal investigation (Walker 1992) and that traditional constitutional requirements may be inappropriate for regulating noninvestigatory police activity.

Consider police searches as an example. Typically, to satisfy the Fourth Amendment, police must obtain a warrant from a magistrate certifying that they have probable cause to believe that the places, persons, and things to be searched are involved or related to a criminal act. Moreover, it is typically said that warrant requirement is extinguished only for certain categorical exceptions. But what happens when police engage in activities, such as responding to a leak in a private home that may damage property (United States v. Boyd, 407F. Supp. 693 (1976)), responding to a serious noise nuisance (United States v. Rohrig, 98F.3d 1506, 1522 (6th Cir. 1996)), responding to a missing person’s claim (State v. Brideswell, 759 P.2d 1054 (Or. 1988); Commonwealth v. Bates, 548N.E. 2d 889 (1989)), retrieving a police-issued firearm from a private automobile (Cady v. Dombrowski, 413 U.S. 433 (1973)), investigating a potential burglary in progress (United States v. Johnson, 9F.3d 506 (6th Cir. 1993)), and assisting injured or endangered persons (Wright v. State, 7S.W.3d 148 (Tex. App. Ct. 1999)). In these and related situations, courts have not required police to first obtain a warrant from a judicial magistrate before entering homes and searching people. When discussing these activities, courts often point to the “Community Caretaking doctrine” (CC), in order to grant police relief from some of the traditional Fourth Amendment procedures. Courts typically apply CC where the police invade a traditional area of Fourth Amendment privacy but do so for purposes other than criminal investigation. Given the range of activities to which CC has been applied, there is a very real sense in which it can be considered the constitutional law of community policing.

Federal judge and legal scholar Debra Livingston has articulated two primary justifications for decreased procedural protections in CC cases (Livingston 1998). First, CC intrusions are thought not to impose stigma upon the victim because the police typically are not motivated by criminal suspicion when engaging in the intrusion. Second, many courts have concluded that community caretaking activities are less intrusive than investigative searches. During investigative searches, the police search all locations specified in the warrant in which the evidence may reasonably be found. The search continues until the police locate the relevant criminal evidence or determine it is not present. By contrast, when engaging in intrusions justified by CC, the police usually have no suspicion of criminal activity and thus have no reason to proactively search for criminal evidence.

Specifics Of The Community Caretaking Doctrine

The courts are divided on the requirements imposed upon police officers when the CC doctrine applies. There are two primary camps.

One group of courts has interpreted CC as independent of traditional Fourth Amendment jurisprudence. On this view, CC intrusions are not governed by the usual probable cause and warrant requirements. Instead, a warrantless intrusion justified by the CC doctrine is permitted if the officer’s actions were reasonable given the totality of the circumstances. For example, in State v. Pinkard, 319 Wis. 2d 234 (2010), a private citizen informed the police that two persons were sleeping in a home next to cocaine and other contraband and that the door to the home was open. The police entered the home to “make sure that the occupants … were not the victims of any type of crime[,] that they weren’t injured .. . and to safeguard any life or property in the residence.” Upon entering the home, the police seized drugs and other contraband in plain view. The Supreme Court of Wisconsin held that “the officers were engaged in a bona fide community caretaker function and that the community caretaker function was reasonably exercised under the totality of the circumstances.” Similarly, in Wright v. State, 7S.W.3d 148, 151 (Tex. App. Ct. 1999), the court held that a “police officer may stop [a car to] assist an individual whom a reasonable person – given the totality of the circumstances – would believe is in need of help.” This post hoc reasonableness test contrasts sharply with the traditional categorical approach under the Fourth Amendment. It is not, however, a complete anomaly. The Supreme Court has, for example, applied reasonableness tests to a range of police functions that fall under the special needs exception, such as searches of student property (New Jersey v. T.L.O., 469 U.S. 325 (1984)) and highway roadblocks (Delaware v. Prouse, 440 U.S. 648 (1979)).

A second group of courts, rather than interpreting CC as an independent doctrine with its own set of rules, have applied CC as an extension of the traditional exigent circumstances exception to the warrant requirement. The exigency exception extinguishes the warrant requirement when one or more categorically defined exigencies are satisfied (i.e., hot pursuit, destruction of evidence); and it is not practical for police to obtain a warrant. Importantly, under this line of reasoning, the police must still demonstrate probable cause. They are relieved only from the requirement of obtaining a warrant. Thus, some courts have held that the CC doctrine does not permit warrantless Fourth Amendment intrusions that lack probable cause (or reasonable suspicion when appropriate). Nor do such courts permit warrantless intrusions when police had sufficient time to obtain a warrant but did not. Courts have applied this interpretation of the CC doctrine in a number of circumstances including missing person cases (State v. Brideswell, 759 P.2d 1054 (Or. 1988); Commonwealth v. Bates, 548N.E. 2d 889 (Mass. 1990)) and responses to home burglary calls (United States v. Erickson, 991F.2d 529 (9th Cir. 1993)).

Judge Livingston has argued that the first interpretation of the CC doctrine is superior. She writes, CC “does not fit within the central assumptions [of traditional Fourth Amendment theory]. The ‘reasonableness theory’ … can better and more sensitively accommodate those cases in which police officers have intruded on private places principally to serve legitimate community caretaking ends. Though the Court’s ‘special needs’ cases have been subject to legitimate criticism, these cases in fact respond to the plausible intuition that some intrusions on privacy implicate a different set of social practices than traditional law enforcement and are sufficiently unlike law enforcement intrusions so as to justify a distinct Fourth Amendment approach. This same intuition, however, applies to police intrusions to protect life and property or to serve other important community caretaking purposes” (Livingston 1998 at 261, 265).

In addition to these two primary interpretations of the CC doctrine, some courts have conceptualized CC in terms of a third doctrine, the “emergency doctrine.” Recently, the Supreme Court defined the standard for the emergency doctrine as follows: “police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threated with such injury”(Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). John Decker discusses CC in relation to the emergency doctrine extensively (Decker 1999).

When Does The CC Doctrine Apply?

There are three key legal questions for courts to answer when determining whether the CC doctrine applies in a particular case. First, what kind of public interests and police objectives lay within the scope of CC? Second, what happens when CC objectives overlap with clear criminal investigative objectives? Third, does CC apply to private residences?

The Courts have provided some guidance on the first question and, by implication, the second. The United States Supreme Court in Cady v. Dombrowski, 413 U.S. 433, 441 (1973), concluded that the CC doctrine applies, at the very least, to cases in which the police objective was “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.” Following this logic, lower courts have applied CC to a range of police activities, such as responding to a leak in a private home that may damage personal property (United States v. Boyd, 407F.Supp. 693 (1976)), responding to a serious noise nuisance (United States v. Rohrig, 98F.3d 1506, 1522 (6th Cir. 1996)), responding to a missing person’s claim (State v. Brideswell, 759 P2d 1054 (Or. 1988)), retrieving a police-issued firearm from a private automobile (Cady v. Dombrowski, 413 U.S. 433 (1973)), and assisting injured or endangered persons (Wright v. State, 7S.W.3d 148 (Tex. App. Ct. 1999)). Collectively, case law suggests that the CC doctrine applies to three main categories of police functions: protection of public or private property, protection of individual or community safety, and elimination of public nuisance. Each of these categories, of course, is an area ripe of potential for community policing activity.

Note that the Dombrowski Court equivocated on whether the CC doctrine applies when criminal investigative objectives also are present. The reality is that even when such objectives are not present at the outset of an engagement between citizens and police when police are acting in their community caretaking capacity, it is likely that at some point the encounter may take on a criminal investigative character. What to do in such situations? The answer requires resolving two sub-issues.

First, may an officer legally conduct a search under the CC doctrine when his true subjective intent is to investigate criminal activity? At least one court has held that the CC doctrine can apply even if the subjective purpose of the officer is investigative in nature stating that “a court may consider an officer’s subjective intent in evaluating whether the officer was acting as a bona fide community caretaker; however, if the court concludes that the officer has articulated an objectively reasonable basis under the totality of the circumstances for the community caretaker function, he has met the standard of acting as a bona fide community caretaker, whose community caretaker function is totally divorced from law enforcement functions” (State v. Kramer, 759N. W.2d 598 (Wisc. 2009)). In contrast, John Decker insists that an “officer’s actions must be motivated by an intent to aid or protect, rather than to solve a crime” in order for the CC doctrine to apply (Decker 1999). Decker then makes an argument similar to the Supreme Court’s reasoning in Indianapolis v. Edmond, 531 U.S. 32 (2000). There the Court invalidated a randomized checkpoint utilizing dog sniffs of cars to detect drugs because each sniff of a car was not motivated by individualized suspicion and therefore lacked probable cause.

The second sub-issue is this: given the almost inevitable presence of some criminal/investigative purpose in a CC case, how much is too much? Judge Livingston proposes that for the CC doctrine to apply, “a legitimate community caretaking purpose [must have] clearly predominated over any law enforcement purpose that was present.” Moreover, the CC purpose must “constitute an independent and substantial justification for the intrusion” (Livingston 1998).

Finally, a live question among the courts is whether the CC doctrine applies to private residences. The Supreme Court has never provided specific guidance on this issue, although in a case concerning police use of without a warrant of a heat sensor outside of a home in an attempt to detect increased thermal energy resulting from growing marijuana plants indoors, the Court seemingly has indicated that warrantless searches of homes presumptively are invalid. The lower federal courts are divided on the issue. Three circuits permit the application of the CC doctrine to homes, and four circuits (3rd, 7th, 9th, 10th) do not (Marinos 2012). Commentator Mary Naumann concludes that many state courts are more lenient than the federal courts, and several allow police to argue, when a citizen objects to an intrusion, that their actions as public servants were reasonable in the context of a balancing test wherein an individual’s interest in privacy or autonomy is balanced against the state’s interest in having the police act as public servants (Naumann 1999).

While the police can perform valuable and useful service as community caretakers, the potential danger of sanctioning this activity without limits should be obvious. To the extent that one believes that the Fourth Amendment’s individualized suspicion required provides broad and sturdy protection against invasions of individual rights, then one should be skeptical of a doctrine that not only relaxes the warrant requirement but does not necessarily require even probable cause alone to justify a police action (but see Harcourt and Meares 2011). Thus, there is a risk that the doctrine could be used as pretext for criminal investigation, providing police with a loophole for getting around Fourth Amendment strictures.

Conclusion

In a world in which people increasingly believe that police can and should play a large role in producing public safety, there is an increasing likelihood that police will utilize their discretion to play a proactive rule with respect to the public as opposed to a reactive one. Community policing as a philosophy presupposes this kind of activity. However, the constitutional law that provides a framework for policing has largely assumed that police act in a reactive investigatory fashion activated by citizen complaints regarding crime. The Supreme Court’s community caretaking jurisprudence illustrates the dilemmas that both law enforcers and private citizens face as they attempt to navigate the realities of public safety production in their neighborhoods against the backdrop of a constitutional law that has been for the last few decades very skeptical of police discretion. Continued interplay among the judicial, legislative, and executive branches and public activism at the local level will be necessary to work out the rules of engagement that are both protective of individual rights while allowing police enough flexibility to do the jobs as public agents that their principals expect them to do on their behalf.

Bibliography:

Decker J (1999) Emergency circumstances, police responses, and fourth amendment restrictions. J Crim Law Criminol 89:433
Harcourt B, Meares T (2011) Randomization and the fourth amendment. Univ Chic Law Rev 78:809
Livingston D (1998) Police, community caretaking, and the fourth amendment. University of Chicago Legal Forum, p 261
Marinos MP (2012) Breaking and entering or community caretaking? A solution to the overbroad expansion to the inventory search. Civ Rights Law J 22:249, 264, 270
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Walker S (1992) The police in America: an introduction, 2nd edn. McGraw-Hill, NewYork