A Community Caretaking Policy: Why Mental Health Professionals Should Respond to Welfare Checks When No Exigencies Are Present

• Publication year: 2022

55 Creighton L. Rev. 227. A COMMUNITY CARETAKING POLICY: WHY MENTAL HEALTH PROFESSIONALS SHOULD RESPOND TO WELFARE CHECKS WHEN NO EXIGENCIES ARE PRESENT

A COMMUNITY CARETAKING POLICY: WHY MENTAL HEALTH PROFESSIONALS SHOULD RESPOND TO WELFARE CHECKS WHEN NO EXIGENCIES ARE PRESENT

Joseph McKechnie, '23 ^[D1]

I. INTRODUCTION ................................... 228

II. BACKGROUND .................................... 231

A. FOURTH AMENDMENT REASONABLENESS STANDARD ....................................... 231

B. EXCEPTIONS TO THE FOURTH AMENDMENT'S WARRANT REQUIREMENT ......................... 234

1. The Automobile Exception to the Fourth Amendment's Warrant Requirement .......... 234

2. Warrantless Searches of a Home: Exigent Circumstances ............................... 236

3. Warrantless Consent Searches of a Home ..... 237

4. The Plain View Doctrine ..................... 238

C. THE CREATION OF THE COMMUNITY CARETAKING EXCEPTION BY THE UNITED STATES SUPREME COURT .......................................... 239

1. History of the Community Caretaking Exception .................................... 239

2. Expansion of the Community Caretaking Exception from the Automobile to the Home ... 241

3. The Community Caretaking Exception Does Not Justify Warrantless Entries into the Home ....................................... 243

D. WELFARE CHECKS AND HOW THEY RELATE TO THE COMMUNITY CARETAKING EXCEPTION ......... 244

III. ARGUMENT ....................................... 248

A. THE CORRECT POLICY FOR RESPONDING TO WELFARE CHECKS WITH NO EXIGENT CIRCUMSTANCES IS TO SEND A MENTAL HEALTH PROFESSIONAL ................................... 248

1. Caniglia v. Strom: Warrantless Police Entries of a Home Under the Community Caretaking Exception are Unreasonable Under the Fourth Amendment ................ 250

B. WHEN WELFARE CHECKS PRESENT EXIGENT CIRCUMSTANCES, IT IS REASONABLE FOR POLICE TO RESPOND ..................................... 254

C. MENTAL HEALTH PROFESSIONALS ARE BEST EQUIPPED TO DEAL WITH INDIVIDUALS SUFFERING FROM MENTAL ILLNESS AND TO PERFORM WELFARE CHECKS ...................... 256

1. Mental Health Professionals Would Likely Not Be Considered State Actors Within the Meaning of the Fourth Amendment ........... 261

D. REBUTTING THE IDEA THAT IT IS COSTLY AND DANGEROUS TO SEND NON-LAW ENFORCEMENT ON WELFARE CHECKS AND OTHER NON CRIMINAL MATTERS .............................. 265

1. The Financial Benefits of a Non-Law Enforcement Response for Welfare Checks .... 265

2. Responding Mental Health Professionals Do Not Decrease Public Safety ................... 266

IV. CONCLUSION ..................................... 267

I. INTRODUCTION

The Fourth Amendment of the United States Constitution ensures that people are free from unreasonable governmental intrusions. ^[1] To comply with the Fourth Amendment's reasonableness standard, police officers and state actors are commonly required to obtain a warrant before undertaking a search or seizure. ^[2] The protections guaranteed by the Fourth Amendment safeguard individual liberties and freedoms and apply wherever a person holds a reasonable expectation of privacy. ^[3]

The United States Supreme Court has allowed police officers to engage in warrantless searches in limited circumstances if exigencies are present, or the individual consents. ^[4] The Court has afforded the home with the highest levels of protection due to the explicit language of the Fourth Amendment, fortifying the idea a person is protected against government intrusion unless a warrant is issued based upon probable cause. ^[5] Absent an established exception to the Fourth Amendment warrant requirement, it is per se unreasonable for police to enter the home without a warrant. ^[6]

However, the Court has given police more leeway when it comes to searches and seizures involving an automobile. ^[7] In Cady v. Dombrowski, ^[8] the Court articulated a new exception involving the automobile called the community caretaking exception. ^[9] The Cady Court explained that when police respond to non-criminal automobile matters, separate from the normal law enforcement duties of investigating and detecting crime, it is reasonable for police to search or seize evidence or contraband. ^[10] The justification behind the new exception was the impracticality for police to secure a warrant due to the ambulatory nature of automobiles and their extensive regulation that determines their legality to drive on public roads. ^[11]

Over the years, the community caretaking exception was carefully expanded by a minority of United States Courts of Appeals to allow police to enter homes when acting as community caretakers. ^[12] In doing so, courts enabled police to enter residences when responding to non-criminal calls such as welfare checks and noise complaints. ^[13] Subjective police discretion has led to a multitude of deaths and shootings when police confront mentally ill individuals in their homes. ^[14] A 2016 study from the American Journal of Preventative Medicine discovered that twenty to fifty percent of all fatal police shootings involved mentally ill persons. ^[15] Furthermore, roughly two million incarcerated individuals suffer from some form of mental illness. ^[16] Data shows police are not properly equipped to handle these types of calls, which typically result in the death of the person who police were called to assist. ^[17] In 2021, the United States Supreme Court held that the community caretaking exception does not justify warrantless home entries by police. ^[18] Additionally, in response to the protests that have erupted across the country, cities are debating and implementing new procedures to address mental health issues, substance abuse, and homelessness. ^[19]

First, this Note will discuss the reasonableness standard enumerated in the Fourth Amendment and a few warrant exceptions the United States Supreme Court has established. ^[20] Second, this Note will explore the history of the community caretaking exception beginning with its first articulation through its expansion by the United States circuit courts. ^[21] Third, this Note will review the effects of subjective police discretion when it comes to warrantless home entries and detail the dangers people with mental illness face when receiving a welfare check. ^[22] Fourth, this Note will argue when a welfare check is called on an individual, with no exigent circumstances present, a mental health professional should be the first responder. ^[23] This conclusion is supported by data showing the likelihood of police shootings when they respond to welfare checks on mentally ill persons and comports with the reasonableness standard courts created for the Fourth Amendment. ^[24] Finally, the Note will discuss counter arguments and offer rebuttals. ^[25]

II. BACKGROUND

A. FOURTH AMENDMENT REASONABLENESS STANDARD

To ensure the constitutionality of a police search, or arrest of a person, the United States Supreme Court provided a reasonableness standard for police to comply. ^[26] Ratified in 1791, and incorporated to the states through the Fourteenth Amendment, the Fourth Amendment protects a person from unreasonable searches and seizures conducted by state actors, such as the police. ^[27] Reasonableness is the determinative factor regarding the constitutionality of a search for the purposes of the Fourth Amendment. ^[28] Generally, to comport with the reasonableness requirement enumerated in the Fourth Amendment, either a search warrant or an arrest warrant is necessary before police can search an area or arrest an individual. ^[29] However, such a requirement is not absolute. ^[30] For a warrant to be issued, the Fourth Amendment requires a showing of probable cause describing the place to be searched and the things, or people, to be seized. ^[31] To secure a search warrant for a vehicle, probable cause requires police have a reasonable belief the vehicle contains illegal contraband, or evidence a crime has been committed. ^[32] Regarding an arrest, probable cause exists when the circumstances are sufficient to warrant a reasonable police officer to believe a crime has been, or will be, committed by a person. ^[33]

The Fourth Amendment affords protections to people's subjective expectations of privacy that society has recognized as legitimate. ^[34] A subjective expectation of privacy is an area in which the person expects to be private and the person exhibits an intention to keep the area private. ^[35] A legitimately recognized privacy expectation would be a privacy expectation society accepts as reasonable. ^[36] The United States Supreme Court explained that the Fourth Amendment protects people, not places, and when a person seeks to preserve their privacy, they are constitutionally protected, even in a publicly accessible area. ^[37] When an individual exhibits a justifiable reliance on privacy, a search and seizure under the Fourth Amendment occurs when the police, or government, intrude on that privacy. ^[38]

Reasonableness of a search is determined by weighing the intrusion on an individual's privacy interest against the promotion of an articulated and legitimate state interest. ^[39] Privacy interests vary depending on where the person is located. ^[40] For example, an individual has a higher expectation of privacy in a home versus a vehicle because the Constitution protects against...