When can the police approach my car? What is the Community Care taking function? If I was parked how can I be charged with a DWI?

Issue:  In this case the police approached a car for no reason which the officer observed pull into a parking lot of a closed store late at night after hours.  Are they allowed to do that and walk up to the driver and start to ask questions?  Have the driver been arrested at that time? Is this an investigatory stop or a “Terry Stop”?

Submitted by New Jersey DWI Lawyer, Jeffrey Hark

Law:  What is the Community Care Taking Doctrine?


The following facts, which are not disputed, are taken from the record of the municipal court suppression hearing.

  1. On July 4, 2016, at approximately 12:30 a.m., Police Officer Scott Tobin was on patrol on Route 10 West in Denville Township. Defendant was operating a vehicle traveling eastbound on the highway.
  2. The officer observed defendant’s vehicle make a U-turn, drive a short distance westbound, and enter a commercial parking lot.
  3. The parking lot, in which no other vehicle was parked, was connected to TJ Sales, a retail business closed at that early morning hour on a holiday.
  4. There are no residences in the area of the parking lot.
  5. Officer Tobin testified that he did not observe defendant violate any traffic laws or drive erratically.
  6. He was, however, concerned that something was wrong with either the vehicle or its operator because the car pulled into the parking lot of a closed establishment shortly after midnight, which he equated with pulling to the side of the road.
  7. The officer, who testified that it is his “job to make sure that everyone . . . in the town . . . is okay,” entered the parking lot, activated his overhead lights, and conducted a motor vehicle stop.
  8. He approached the vehicle, asked defendant for her identification, and inquired why she was in the parking lot.
  9. The officer’s observations ultimately led him to charge defendant with driving while intoxicated (DWI), N.J.S.A. 39:4-50, refusal to submit to a breath test, N.J.S.A. 39:4-50.4a, and reckless driving, N.J.S.A. 39:4-96

The Law Division judge’s finding of fact on appeal on the record:

After defendant filed an appeal, the Law Division judge held a hearing de novo based on the record developed in the municipal court. In a bench opinion issued on October 13, 2017, the trial court accepted Officer Tobin’s testimony that he stopped defendant’s vehicle because he was concerned that something might be wrong with the car or its driver. In addition, the court accepted the officer’s testimony that “if he had been told something along the lines of I’m pulling over to use my phone, I’m trying to get oriented, get directions, or . . . some explanation, the person . . . would have been on their way.” The court held: My sense of the totality of the circumstances in this case is that the officer’s reaction to seeing the vehicle leave the highway and pull into a private, but open to the public, parking area was itself reasonable.[W]hat I think the officer saw as unusual in the absence of some explanation of why the vehicle was pulling off of the highway into a . . . parking area open to the public, but that happened to be associated with a closed business. So I find obviously the initial interest is not subject to any Fourth Amendment restriction. And that seems reasonable to me. I would say that the officer certainly was correct in having his attention drawn to a vehicle going to a closed parking lot. He would be correct in wanting to find out, under the community caretaking doctrine, if there was something wrong with the driver or wrong with the car. 

Appellate Standard of Review:

Our standard of review is limited following a trial de novo in the Law Division, conducted on the record developed in the municipal court. State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005); see also R. 3:23- 8(a)(2). In such an appeal, we “consider only the action of the Law Division and not that of the municipal court.” State v. Oliveri, 336 N.J. Super. 244, 251 (App. Div. 2001). The Law Division judge must make independent findings of fact and conclusions of law based on the evidentiary record of the municipal court with deference to the municipal court judge’s ability to assess the witnesses’ credibility. State v. Johnson, 42 N.J. 146, 157 (1964). We focus our review on “whether there is ‘sufficient credible evidence . . . in the record’ to support the trial court’s findings.” State v. Robertson, 228 N.J. 138, 148 (2017) (alteration in original) (quoting Johnson, 42 N.J. at 162). On legal determinations our review is plenary. See State v. Kuropchak, 221 N.J. 368, 383 (2015).

Appellate Court’s Finding regarding the Community Caretaking Function:

Our analysis begins with the foundational principle that a police stop of a moving motor vehicle is a seizure of the vehicle’s occupants and therefore falls within the purview of the Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution. Whren v. United States, 517 U.S. 806, 809-10 (1996); State v. Baum, 199 N.J. 407, 423 (2009). Ordinarily, “a police officer must have a reasonable and articulable suspicion that the driver of a vehicle, or its occupants, is committing a motor-vehicle violation or a criminal or disorderly persons offense to justify a stop.” State v. Scriven, 226 N.J. 20, 33-34 (2016).

The community caretaking doctrine is an exception to the Fourth Amendment’s warrant requirement. Vargas, 213 N.J. at 324; State v. Cassidy, 179 N.J. 150, 161 n.4 (2004). The doctrine is based on “a wide range of social services” that police provide to ensure the safety and welfare of the public, State v. Edmonds, 211 N.J. 117, 141 (2012) (quoting State v. Bogan, 200 N.J. 61, 73 (2009)), and applies when the police are engaged in functions totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. State v. DiLoreto, 180 N.J. 264, 275 (2004). Community caretaking by police officers includes “aiding those in danger of harm, preserving property, and creating and maintaining a feeling of security in the community.” Bogan, 200 N.J. at 73 (quotations and alterations omitted).

Under the exception, police need not demonstrate probable cause or an articulable suspicion to believe that evidence of a crime will be found to justify a seizure under the Fourth Amendment. DiLoreto, 180 N.J. at 276. Their conduct, however, must be “objectively reasonable under the totality of the circumstances.” Id. at 278. The doctrine is “a narrow exception to the warrant requirement” subject to “meticulous judicial review” of the facts surrounding the challenged police actions. Id. at 282. The State bears the burden to prove that its seizure of a vehicle falls under the exemption. Scriven, 226 N.J. at 38; Vargas, 213 N.J. at 314.

The applicability of the community caretaking doctrine to motor vehicle stops has been examined in a number of contexts. In State v. Goetaski, 209 N.J. Super. 362, 363 (App. Div. 1986), a State trooper observed a vehicle at 4:00 a.m. travelling slowly on the shoulder of a state highway in a rural, fifty-miles- per-hour zone with its left turn signal activated. After observing operation of the vehicle in this fashion for one-tenth of a mile, the trooper effectuated a stop. Id. at 363. Based on the driver’s conduct during the stop, he was arrested for driving while intoxicated. He moved to suppress the evidence arising from the stop because the trooper lacked reasonable and articulable suspicion of illegal activity when he pulled the driver over. Ibid. The trial court denied the suppression motion. Id. at 364. On appeal, we accepted the driver’s argument that “no specific violation, such as swerving erratically or equipment defect, was observed by the officer” prior to the vehicle stop. Ibid. Applying the community caretaking doctrine, however, we noted that an officer observing the defendant’s operation of his vehicle would have reason to believe that either there’s something wrong with the driver, he’s having a problem or there is something out of the ordinary. People don’t drive on the shoulder of the road, especially with their left turn signals on [in the middle of the night in a rural area] if there’s not something wrong.

Noting an emerging line of precedents from other states holding that “police stops of vehicles were justified to warn occupants that an item of property was endangered or a condition of the vehicle created a potential traffic hazard[,]” we held that “the facts were unusual enough for the time and place to warrant the closer scrutiny of a momentary investigative stop and inquiry” to satisfy constitutional concerns.

“We explained that [t]he initial question for resolution is whether a reasonably objective police officer would have been justified in “making an inquiry on property and life” when observing a darkened car with no one outside it, parked shortly before midnight next to a car wash facility which appeared to be closed for the night because its lights were off. Even though there may have been coin operated air fresheners and vacuum stands which could be actuated all night, and even if partially illuminated by street lighting, we do not find that it was objectively unreasonable for the police to deem the situation worthy of a community caretaking inquiry. Here, the initial purpose was not to stop, but merely to see what a darkened car was doing at an hour deemed by experienced police officers[] to be atypical for the location. Applying these precedents to the facts before us leads to the conclusion that the stop of defendant’s vehicle was justified under the community caretaking doctrine. Like the officers in Drummond, Officer Tobin observed defendant’s vehicle in the parking lot of a closed commercial establishment near midnight. The trial court accepted the officer’s testimony that he was concerned for the safety of the driver and the operating condition of the vehicle. In addition, there is no suggestion in the record that the officer stopped the vehicle as a pretext to investigate criminal activity. Given the late hour, the unusual circumstances of the presence of defendant’s vehicle in the parking lot of a closed business on a holiday weekend, and the officer’s testimony that an innocent explanation for defendant’s presence would have ended the stop, we conclude on de novo review that the stop was a valid exercise of the officer’s community caretaking function.

We see no support for the trial court’s conclusion that the officer’s activation of the overhead lights on his patrol car transformed the community caretaking inquiry into an investigative stop. To the contrary, we rejected that proposition in Adubato. 420 N.J. Super. at 180-81. Nor do we agree with the trial court’s observation that the community caretaking doctrine does not apply where there is “no erratic driving, no bad driving, no motor vehicle violations.” The legal precedents make clear that a motor vehicle stop under the community caretaking doctrine must be totally divorced from the investigation of criminal activity. DiLoreto, 180 N.J. at 275. When an officer stops a motor vehicle to investigate a violation of the motor vehicle code, the doctrine does not apply. An officer’s interaction with a member of the public under the community caretaking function is separate from criminal investigatory encounters, which varying degrees of Fourth Amendment protections. See State v. Rosario, 229 N.J. 263 (2017). Moreover, a vehicle need not be in motion for an officer reasonably to be concerned about the welfare of its driver, or the operating condition of the vehicle. Drummond, 305 N.J. Super. at 87-88.

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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