Community-Caretaker Doctrine Doesn't Allow Home Search, Third Circuit Says

By Charles Toutant
New Jersey Law Journal
November 23, 2010


Police can't make a warrantless entry into a home in the guise of community caretakers, the Third U.S. Circuit Court of Appeals ruled Tuesday in a groundbreaking case.

Limiting a doctrine often used to justify automobile searches, the court said that "in the context of the search of a home, it does not override the warrant requirement of the Fourth Amendment or the carefully crafted and well-recognized exceptions to that requirement."

The court, in Ray v. Township of Warren, 09-4353, nevertheless upheld summary judgment dismissing a civil rights suit against Warren Township, its police department and two officers based on qualified immunity.

The court said it reached its conclusion given the reasonableness of the officers' actions and a split among judicial circuits on applicability of the community-caretaker doctrine to home searches.

On June 17, 2005, Theresa Ray went to the home of her estranged husband, Lawrence Ray, to pick up the couple's 5-year-old daughter for court-ordered visitation. Theresa thought she saw a man inside, but no one answered the bell. She called the police, who entered the home through an unlocked door. They found Ray's father inside, sleeping. Ray and his daughter were not home.

When Ray sued, the police raised as a defense that they were engaged at the time in community caretaking — usually defined as protecting public safety, aiding people in distress, combating hazards and preventing potential ones.

The U.S. Supreme Court, in Cady v. Dombrowski, 413 U.S. 433 (1973), held that police engaged in community caretaking could make a warrantless search of a car, for protective purposes, to locate a gun that was missing from a police officer.

Since then, state and federal courts have come to different conclusions on the extent of the doctrine. The circuit courts of appeal are split, with the Seventh, Ninth and 10th circuits holding that it applies only to vehicle searches and the Sixth and Eighth extending it to homes.

In Ray's case, U.S. District Court Judge Joel Pisano granted the township summary judgment based on qualified immunity, without addressing whether the community-caretaker function justified the officers' actions.

On Ray's appeal, the Third Circuit affirmed the qualified immunity ruling but said it was time to draw the line on use of the doctrine to justify home searches.

Circuit Judges Kent Jordan, Anthony Scirica and Julio Fuentes said the Supreme Court, in the Cady case, "expressly distinguished automobile searches from searches of a home, saying that a search of a vehicle may be reasonable 'although the result might be the opposite in the search of a home.'"

The sanctity of the home is a deeply embedded tradition and preventing physical entry of it is the chief purpose of the Fourth Amendment, they added.

But the judges also said that given the unsettled state of the law at the time Ray's home was entered, the officers were not on notice that their conduct was against the law. "Until our decision in this case, the question of whether the community caretaking doctrine could justify entry into a home was unanswered in our circuit," the panel said.

"Given the conflicting precedents on this issue from other circuits, we cannot say it would have been apparent to an objectively reasonable officer that entry into Ray's home … was a violation of the law," they added.

The attorney for the police, Juan Fernandez of O'Toole Fernandez Weiner Van Lieu in Verona, says the court's interpretation of the doctrine will have a "huge" impact on law enforcement. He calls the ruling a dual-edged sword: "We win the case, but we have to tell our clients [that] what they did they can't do in this circumstance," he says.

One of Ray's lawyers, Paul Levinson of McLaughlin & Stern in New York, says, "The one positive that came out of the decision is that the case will stand in the Third Circuit for the proposition that the community-caretaking doctrine cannot be used to justify warrantless searches of a home. It's unfortunate that they didn't take the next step and determine that this case warranted a trial."

Michael Gilberti of Red Bank's Epstein & Gilbert also represented Ray.

Last year, the New Jersey Supreme Court extended the community-caretaker doctrine to homes, ruling in State v. Bogan , 200 N.J. 61 (2009), that police investigating an alleged sexual assault properly entered an apartment, questioned a boy who answered the door and then questioned the defendant, who was lying in an interior bedroom.

Though the questioning of Anthony Bogan led to his arrest and eventual conviction, the Court found the warrantless entry and questioning sufficiently separate from the criminal investigation to invoke the caretaker doctrine.

"So long as the police had an independent basis for entering the apartment under the community caretaking exception that was not a pretext for carrying out an investigatory search, we can find no bar under Cady or under our federal and state constitutions for the police actions in this case," the Court said.