COURT SAYS POLICE DON'T NEED WARRANT IF PUBLIC SAFETY JEOPARDIZED

For the first time, the Court of Criminal Appeals has recognized Texas
police officers' right to stop and search cars without a search warrant if
they feel the public's safety could be in jeopardy.

Critics call the court's Dec. 16 ruling in Wright v. State a dangerous
expansion of police powers.

"If I weren't a white male living in a nice part of town, I'd be scared,"
says Keith Hampton, an Austin criminal-defense lawyer.

In Wright, the court followed Cady v. Dombrowski, a 1973 U.S. Supreme Court
decision that carved out a "community caretaking" exception to the Fourth
Amendment prohibition against warrantless searches.

In Cady, the Supreme Court ruled that police officers had the right to
conduct a warrantless search of a car that had been impounded after an
accident, because the officers feared a gun had been left in the trunk.

"Concern for the safety of the general public who might be endangered if an
intruder removed a revolver from the trunk" justified the search, the
Supreme Court held.

According to Wright, a Williamson County deputy sheriff alleged he saw
someone vomiting out a rear window so he stopped the car to see if the
passenger, Kyle Wright, needed help. When he approached the car, the
officer allegedly saw a marijuana cigarette on a console between the two
front seats.

It is undisputed, according to the opinion, that the officer did not
observe any traffic law violation prior to stopping the car.

Wright was charged with possession, and he pleaded no contest. The 3rd
Court of Appeals in Austin, however, ruled that the marijuana was
inadmissible, because it was the fruit of an illegal stop.

But the Court of Criminal Appeals didn't agree and reversed.

"As part of his duty to 'serve and protect,' a police officer may stop and
assist an individual whom a reasonable person -- given the totality of the
circumstances -- would believe is in need of help," wrote Judge Stephen
Mansfield for the majority.

In determining whether a stop is reasonable, Mansfield ruled that courts
should consider the following: the nature and level of distress exhibited
by an individual; the individual's location; whether the individual was
alone or had access to assistance; and the extent to which the individual
presented a danger to himself or others.

The court remanded the case for a determination of whether the officer's
stop was reasonable in light of these factors.

Five judges joined Mansfield in recognizing a "community caretaking"
exception to the Fourth Amendment. Three judges dissented.

Love Stops

"Texas took a pretty bad case to embrace the community caretaking function,"
says Wright's attorney, David H. Reynolds of Austin. "If the driver had been
throwing up, now there would be some concern for the public welfare."

Court of Criminal Appeals Judge Cheryl Johnson echoed this criticism in her
dissent.

"(I)t is difficult to imagine how appellant, the passenger leaning out of
the right rear passenger window throwing up, was a danger to the general
public," wrote Johnson, who was joined by Judge Tom Price.

"How does being a passenger in a vehicle exclude someone from being a part
of the general public?" counters David Glickler, the assistant Williamson
County attorney who represented the state. "I think there are not
unreasonable circumstances one can imagine in which someone is a passenger
held against their will, and it would be nice if everyone in the general
public could believe the police are there to help."

In a separate dissent, Judge Larry Meyers concluded that aiding someone who
appears sick is a valid public interest, but he didn't believe Wright
exhibited a sufficient level of distress to justify the stop.

"In these circumstances," he wrote, "(Wright's) privacy interests under the
Fourth Amendment outweigh the State's interest in rendering aid."

Hampton expects Wright to trigger many more public welfare stops or "love
stops" as he calls them.

"Why did you stop him? Well, he looked like he was lost or he looked like
he might not be feeling well," says Hampton. "We are giving police the
power to love us to death."

He adds that the opinion will give prosecutors a potent weapon to counter a
defendant's efforts to exclude incriminating evidence found during a
welfare stop.

"The prosecution will put a halo right over the head of the police officer
and say he was fulfilling the police power of caring for his community.
That will happen in every case, and who can counter that?"

Wright also paves the way for officers to poke their noses in people's
homes, not just their cars, warns Neil McCabe, a criminal-law professor at
South Texas College of Law.

"Maybe some people trust police officers more than I do," he says.

In his majority opinion, Mansfield, however, instructed courts to look at
community caretaking searches of homes with close scrutiny "given the
greater expectation of privacy inherent with respect to residences."

State Prosecuting Attorney Matthew Paul says Wright is in line with many
other jurisdictions across the country that have embraced the community
caretaker principle.

Says Paul: "It is really a no-brainer. . . . For example, when there is a
wreck, there is no evidence of criminal activity, but police officers still
must stop and see if anyone needs help and direct traffic around the wreck.
We want and expect our police officers to perform those sorts of caretaking
functions."