Phew. When Gary Wade left the Supreme Court, things really started changing. Wade authored the 2013 Moats opinion, which was expressly overturned by the Tennessee Supreme Court in State v. McCormick. Moats was a close decision – a 3-2 split in 2013, with Wade, Holder, and Lee in the majority and Koch and Clark dissenting. In McCormick released on May 10, 2016, Lee joined three other justices (Clark, Kirby, and Bivins) in finding that: “Moats was wrongly decided, we overrule Moats and hold that the community caretaking doctrine is analytically distinct from consensual police-citizen encounters and is instead an exception to the state and federal constitutional warrant requirements which may be invoked to validate as reasonable a warrantless seizure of an automobile.” What a major change to the law in the last 3 years.
Let’s talk about McCormick. Specifically, do the facts of this case warrant a change in the law and overruling of Moats?
It’s 3 a.m. in White County, and a Highway Patrolman sees a Tahoe that he believes is partially blocking the roadway. As he gets closer, he discovers it isn’t blocking the roadway, but it’s blocking 75% of the entrance into Save-A-Lot. (Bad fact.) While most people don’t want to save a lot at 3 a.m. the officer was concerned that someone might hit the vehicle and he pulled behind, himself parking in the roadway, and activated those beautiful blue lights. The officer approached the vehicle, engine running with headlights on, and observed the driver slumped over the wheel. (Bad fact.) Loud music was blaring inside the vehicle, and the officer could not rouse the driver after knocking on the window. (Real bad fact.) The officer opened the door to what could best be described as “a hot mess.” The defendant reeked of alcohol, had McDonald’s food in his lap with sauce all over his face, and a bottle of beer in the center console. (C’mon!) Not surprisingly, after ensuring the defendant was “okay,” they got him out of the vehicle where he indicated he was drunk as a skunk. Defendant further stated he believe it was 11:30 at night and he had consumed five or six beers starting at 7:00 p.m. The real kicker occurs when the defendant is seated in the backseat of the cruiser and another vehicle tries to enter the parking lot. The officer asks the defendant if he knows who is in the other car, to which the defendant replies: “No, I sure don‟t. I‟m sorry. I‟ve had too much to drink.” Four cold beers and a bottle of legally-obtained Xanax were recovered from the Tahoe.
Let’s be clear, this set of facts is completely distinguishable from those in Moats – so you’ll want to carefully contrast them. In Moats, it was 2 a.m. and the defendant was also in a grocery store parking lot, but the engine was turned off, and the defendant rolled down his window and responded that he was “fine” when police came knocking. In Moats, the officer had not seen anything illegal or unsavory occur; the officer had merely been curious about why a vehicle would be parked with its lights on in the parking lot.
McCormick comes to some unfortunate conclusions based on a set of facts that I think most people would agree clearly allowed the police to make a welfare check.
The Supreme Court analyzed this case by asking: The first relevant question for purposes of this appeal then is whether Sgt. Trivette’s actions in parking behind the defendant’s vehicle and activating his patrol car’s rear blue lights amounted to a warrantless seizure or was merely a consensual interaction between the defendant and the officer. If the latter, then the state and federal constitutional protections against unreasonable searches and seizures are not implicated. Id. However, if Sgt. Trivette’s actions amounted to a seizure, then the warrantless seizure is presumed unreasonable, but the presumption may be overcome, and suppression of evidence avoided, if the State demonstrates that the seizure was conducted pursuant to one of the exceptions to the warrant requirement. (p. 6 of the Opinion.)
The State argued that Moats should be overturned, so that police officers may activate their blue lights in order to complete a welfare check, and there should be an exception to the warrant requirement based on the community caretaking doctrine. The Supreme Court agreed.
In making this exception, the Tennessee Supreme Court cites to the SCOTUS decision of Cady v. Dombrowski, which found a lesser expectation of privacy in motor vehicles. The Court also cites to a lengthy list of cases from other jurisdictions that allow a community caretaking exception. (Footnote 9.) The Court held that Cady did not limit the community caretaking exception to consensual encounters between citizens and police, and found that the exception was for a laudatory purpose that is widely-accepted. The Tennessee Supreme Court discussed the doctrine of stare decisis, but found more “good than harm” would be done by overruling Moats.
So what is the community caretaking exception? How do we know if it is reasonable? First, the Supreme Court says it doesn’t matter what the officer was thinking, as long as his actions “objectively justify the action.” Does this mean that an officer’s true intent of busting a well-known drug dealer is okay, as long as he can justify that he was just working to care for the community? Citing the Moats disstent, the Court states: “[r]equiring the State to prove that a police action was motivated solely by community caretaking concerns would inappropriately shift the focus to the officer‟s (irrelevant) subjective motivations.” (Personally, I’m really not crazy about that language. The Government is seizing you – shouldn’t they have to explain what the motivation was/is?!)
The exception is adopted directly from the dissent in Moats. The caretaking exception is defined as: the State establishes that (1) the officer possessed specific and articulable facts which, viewed objectively and in the totality of the circumstances, reasonably warranted a conclusion that a community caretaking action was needed, such as the possibility of a person in need of assistance or the existence of a potential threat to public safety; and (2) the officer’s behavior and the scope of the intrusion were reasonably restrained and tailored to the community caretaking need. (Opinion, p. 16.)
The Court applies the facts of McCormick to the caretaking exception test, and the answer is a no-brainer; the officer was clearly acting within his duties to engage the defendant drunkenly slumped over his wheel, who was unresponsive except to the siren song of Mickey D’s secret sauce. But, realistically, following Moats and the previous law, wasn’t McCormick still legally seized? Would the Court's answer have been the same without overruling Moats? I think the answer is a clear, YES.
My two primary concerns are what the application of this test is going to look in high-crime areas, rather than rural counties, and that the subjective intent of the officer plays no role in determining the legality of the stop. How this all plays out, remains to be seen.
Read McCormick here: http://www.tsc.state.tn.us/sites/default/files/mccormickk_opn.pdf
Read Moats here: https://www.tn.gov/assets/entities/commerce/attachments/LETLegalUpdate-MoatsOpinion.pdf
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