                                                                              FILED
                                                                      May 12 2016, 8:24 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jennifer M. Lukemeyer                                     Gregory F. Zoeller
Voyles Zahn & Paul                                        Attorney General of Indiana
Indianapolis, Indiana                                     Angela N. Sanchez
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Mary Osborne,                                             May 12, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          29A02-1511-CR-1931
        v.                                                Appeal from the Hamilton
                                                          Superior Court
State of Indiana,                                         The Honorable J. Richard
Appellee-Plaintiff.                                       Campbell, Judge
                                                          Trial Court Cause No. 29D04-
                                                          1412-CM-10052



Riley, Judge.




Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016                           Page 1 of 20
                                    STATEMENT OF THE CASE

[1]   Appellant-Defendant, Mary Osborne (Osborne), appeals the trial court’s denial

      of her motion to suppress


[2]   We reverse and remand.


                                                     ISSUE

[3]   Osborne raises one issue on interlocutory appeal, which we restate as follows:

      Whether the warrantless seizure of Osborne violated the Fourth Amendment to

      the United States Constitution or Article 1, Section 11 of the Indiana

      Constitution.


                           FACTS AND PROCEDURAL HISTORY

[4]   On December 14, 2014, at approximately 1:00 a.m., Officer Jason Arnold

      (Officer Arnold) of the Fishers Police Department was assisting two other

      police officers with an operating while intoxicated investigation on 116th Street

      in Fishers, Hamilton County, Indiana. (Tr. p. 12). During the course of that

      investigation, dispatch advised that a clerk working at the Marathon gas station,

      located “near 116th Street and Brook[s] School Road[,]” had reported that “a

      female subject . . . was stuck underneath her vehicle in the parking lot.” (Tr. p.

      13). Officer Arnold responded to the call and drove to the gas station, which

      was approximately “a mile to a mile and a half” away. (Tr. p. 14). En route,

      dispatch apprised Officer Arnold of the vehicle’s license plate number and that

      it “was a black passenger car, possibly a BMW.” (Tr. p. 14).



      Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016   Page 2 of 20
[5]   As Officer Arnold neared the gas station, he received “an update from dispatch

      that the female had gotten herself out from under the vehicle and was leaving.”

      (Tr. p. 15). When he arrived at the gas station, he observed a vehicle matching

      the reported description driving away. Although he did not witness the

      driver—later identified as Osborne—commit any traffic violations, Officer

      Arnold initiated a traffic stop. He stated that


              [d]ue to the nature of the call[,] I felt that it was necessary to stop
              the individual and check on [her] welfare. It’s not very normal
              activity. It’s not every day I receive this kind of call so I thought
              it was necessary to check on the welfare and the well[-]being of
              the individual.


      (Tr. p. 16). He added that he “was concerned that [Osborne] potentially could

      have been seriously injured, broken bones or anything. Or something was

      wrong with [her] that started this whole thing to begin with because it’s not

      normal behavior.” (Tr. p. 17).


[6]   Officer Arnold approached the driver-side window, and although he did not

      observe any blood or other apparent injuries, he indicated that “there could be

      something wrong with her . . . internally. I couldn’t see her feet or legs really

      from where I was at. She could have had a broken bone down there that I

      couldn’t see. So I went to inquire from her if she had anything wrong with her

      that I didn’t know about.” (Tr. p. 22). He asked, “Ma’am, are you okay; are

      you hurt?” (Tr. p. 21). Osborne informed Officer Arnold that “she was fine”

      and declined medical treatment. (Tr. p. 23). Nevertheless, Officer Arnold

      remained “concerned because . . . it’s not normal behavior. . . . I didn’t know if

      Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016       Page 3 of 20
      maybe she ha[d] something else going on, what was it that caused this or

      whatever. And I asked her what happened; what caused her to get trapped

      underneath her vehicle.” (Tr. p. 23). Osborne explained that her vehicle has a

      manual transmission, and “when she exited the vehicle at the gas station she

      must have forgotten to put the parking brake on and it rolled back on top of

      her.” (Tr. p. 23).


[7]   Osborne’s explanation convinced Officer Arnold that she was not in need of

      medical or other assistance. However, as he was questioning her, Officer

      Arnold noticed signs of possible impairment, including the odor of alcohol on

      her breath, red and watery eyes, and slurred speech. When Officer Arnold

      asked whether Osborne had consumed any alcohol, she stated that she had a

      beer about one hour earlier. According to the probable cause affidavit, Officer

      Arnold conducted several field sobriety tests, which Osborne failed. In

      addition, Officer Arnold administered a portable breathalyzer test, which

      indicated that Osborne’s alcohol level was 0.12. After being transported to the

      Hamilton County Jail, Osborne submitted to another breath test, which

      revealed that her alcohol level was 0.10. On December 19, 2014, the State filed

      an Information, charging Osborne with Count I, operating a vehicle while

      intoxicated in a manner that endangers a person, a Class A misdemeanor, Ind.

      Code § 9-30-5-2(a)-(b); and Count II, operating a vehicle with an alcohol

      concentration equivalent to at least 0.08 gram of alcohol per 210 liters of the

      person’s breath, a Class C misdemeanor, I.C. § 9-30-5-1(a)(2).




      Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016   Page 4 of 20
[8]    On June 24, 2015, Osborne filed a motion to suppress the evidence obtained

       during the course of the traffic stop. She argued that the warrantless seizure—

       i.e., the traffic stop—violated both the Fourth Amendment to the United States

       Constitution and Article 1, Section 11 of the Indiana Constitution. On

       September 15, 2015, the trial court conducted a hearing, and on October 5,

       2015, the trial court issued a Suppression Order, denying Osborne’s motion.

       The trial court noted that “[o]ne exception [to the warrant requirement] is the

       noncriminal, noninvestigative community caretaking function, which is used

       with caution in order to ensure that it is not used as a pretext for a criminal

       investigation.” (Appellant’s App. p. 29). The trial court concluded that

       “Officer Arnold stopped [Osborne’s] vehicle as part of his ‘community

       caretaking’ function”; therefore, the warrantless seizure did not run afoul of

       either the federal Constitution or the Indiana Constitution. (Appellant’s App.

       p. 28).


[9]    On October 29, 2015, Osborne filed a motion to certify the Suppression Order

       for interlocutory appeal, which the trial court granted on November 2, 2015.

       On December 11, 2015, our court accepted jurisdiction over the case. Osborne

       now appeals. Additional facts will be provided as necessary.


                                   DISCUSSION AND DECISION

                                              I. Standard of Review

[10]   Our standard for reviewing a trial court’s ruling on a motion to suppress is well

       settled. Similar to sufficiency matters, we must “determine whether substantial

       evidence of probative value exists to support the trial court’s ruling.” Litchfield
       Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016    Page 5 of 20
       v. State, 824 N.E.2d 356, 358 (Ind. 2005). We do not reweigh the evidence, and

       we consider any conflicting evidence most favorably to the trial court’s ruling.

       Id. Additionally, “[u]nlike typical sufficiency reviews, . . . we will consider . . .

       the uncontested evidence favorable to the defendant.” Gunn v. State, 956

       N.E.2d 136, 138 (Ind. Ct. App. 2011). We will uphold the trial court’s ruling as

       long as it is sustainable on any legal theory apparent in the record. Allen v.

       State, 893 N.E.2d 1092, 1095 (Ind. Ct. App. 2008), trans. denied. “When the

       trial court’s denial of a defendant’s motion to suppress concerns the

       constitutionality of a search or seizure, . . . it presents a question of law, and we

       address that question de novo.” Robinson v. State, 5 N.E.3d 362, 365 (Ind.

       2014).


                                             II. Fourth Amendment

[11]   Osborne claims that the trial court erred by denying her motion to suppress the

       evidence obtained during the course of the traffic stop because the stop itself

       violated the Fourth Amendment to the United States Constitution. The Fourth

       Amendment protects “[t]he right of the people to be secure in their persons,

       houses, papers, and effects[] against unreasonable searches and seizures.” U.S.

       CONST. amend IV. This protection is extended to the states through the

       Fourteenth Amendment. Woodford v. State, 752 N.E.2d 1278, 1280 (Ind. 2001).

       A warrant supported by probable cause is typically required in order for a

       search or seizure to be reasonable. Breitweiser v. State, 704 N.E.2d 496, 498 (Ind.

       Ct. App. 1999). Warrantless searches and seizures “are per se unreasonable

       under the Fourth Amendment—subject only to a few specifically established

       Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016     Page 6 of 20
       and well-delineated exceptions.” Brown v. State, 653 N.E.2d 77, 80 (Ind. 1995).

       The State bears the burden of proving that an exception to the warrant

       requirement applies. Trotter v. State, 933 N.E.2d 572, 579 (Ind. Ct. App. 2010).


[12]   “A traffic stop of an automobile and temporary detention of its occupants

       constitutes a ‘seizure’ within the meaning of the Fourth Amendment.” Bush v.

       State, 925 N.E.2d 787, 789 (Ind. Ct. App. 2010) (citing Whren v. United States,

       517 U.S. 806, 809-10 (1996)). However, it is well established that a traffic stop

       is akin to an investigative stop pursuant to Terry v. Ohio, 392 U.S. 1 (1968),

       whereby a police officer “may stop and briefly detain an individual for

       investigatory purposes if, based upon specific and articulable facts, the officer

       has a reasonable suspicion of criminal activity even if the officer lacks probable

       cause to make an arrest.” Graham v. State, 971 N.E.2d 713, 716 (Ind. Ct. App.

       2012), trans. denied; Crabtree v. State, 762 N.E.2d 241, 245 (Ind. Ct. App. 2002).

       Thus, while “[a] law enforcement officer must have probable cause to instigate

       a full-blown arrest or a detention that lasts for more than a short period[,] . . . a

       traffic stop is valid under the Fourth Amendment if it is based on an observed

       traffic violation or if the officer has reasonable suspicion that the person

       detained is involved in criminal activity.” Killebrew v. State, 976 N.E.2d 775,

       779 (Ind. Ct. App. 2012), trans. denied. Reasonable suspicion must be based on

       “more than mere hunches or unparticularized suspicions.” Potter v. State, 912

       N.E.2d 905, 907 (Ind. Ct. App. 2009) (citing Finger v. State, 799 N.E.2d 528,

       533-34 (Ind. 2003)).




       Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016     Page 7 of 20
[13]   In this case, there is no dispute that Officer Arnold’s traffic stop was not based

       on his observation of any traffic violation or suspicion of criminal activity.

       Nonetheless, the State maintains that “Officer Arnold’s concerns for

       [Osborne’s] health and safety justified the slight intrusion of a traffic stop.”

       (Appellee’s Br. p. 11). The trial court agreed with the State and found that

       Officer Arnold had properly stopped Osborne pursuant to his community

       caretaking function.


[14]   The concept of a “community caretaking function” was first articulated in Cady

       v. Dombrowski, 413 U.S. 433, 441, 443 (1973), where, following an accident,

       officers conducted a warrantless search of an impounded vehicle in an effort to

       locate a firearm that the driver was known to possess in order “to protect the

       public from the possibility that a revolver would fall into untrained or perhaps

       malicious hands.” There, the Supreme Court stated that due to


               the extensive regulation of motor vehicles and traffic, and also
               because of the frequency with which a vehicle can become
               disabled or involved in an accident on public highways, the
               extent of police-citizen contact involving automobiles will be
               substantially greater than police-citizen contact in a home or
               office. Some such contacts will occur because the officer may
               believe the operator has violated a criminal statute, but many
               more will not be of that nature. Local police officers, unlike
               federal officers, frequently investigate vehicle accidents in which
               there is no claim of criminal liability and engage in what, for
               want of a better term, may be described as community caretaking
               functions, totally divorced from the detection, investigation, or
               acquisition of evidence relating to the violation of a criminal
               statute.


       Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016     Page 8 of 20
       Id. at 441. As further described by our supreme court, the community

       caretaking function “is ‘a catchall for the wide range of responsibilities that

       police officers must discharge aside from their criminal enforcement activities.’”

       Fair v. State, 627 N.E.2d 427, 431 (Ind. 1993) (quoting United States v. Rodriguez-

       Morales, 929 F.2d 780, 785 (1st Cir. 1991), cert. denied, 502 U.S. 1030 (1992)).

       Thus, “[t]he police are expected not only to enforce the criminal laws but also

       to aid those in distress, abate hazards, prevent potential hazards from

       materializing, and perform an infinite variety of other tasks calculated to

       enhance and maintain the safety of communities.” Id.


[15]   The community caretaking function “is a narrow exception to the privacy

       protections of the Fourth Amendment.” Killebrew, 976 N.E.2d at 782. In

       Indiana, it has been applied as an exception to the warrant requirement only in

       cases where the police must conduct an inventory search because they are

       impounding a vehicle. See, e.g., Woodford, 752 N.E.2d at 1281; Jones v. State,

       856 N.E.2d 758, 762-63 (Ind. Ct. App. 2006), trans. denied. In those cases, the

       State is required to “demonstrate that: ‘the belief that the vehicle posed some

       threat or harm to the community or was itself imperiled was consistent with

       objective standards of sound policing, and . . . the decision to combat that threat

       by impoundment was in keeping with established departmental routine or

       regulation.’” Ratliff v. State, 770 N.E.2d 807, 809-10 (Ind. 2002) (ellipsis in

       original) (quoting Woodford, 752 N.E.2d at 1281) (internal quotation marks

       omitted).


[16]   In the present case, the trial court concluded that

       Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016    Page 9 of 20
               Officer Arnold was not engaged in a criminal investigation when
               he made the stop[] because he had observed no traffic violations.
               But he was concerned about the physical and mental condition of
               the driver. Officer Arnold stopped the vehicle as part of his
               “community caretaking” function. Needless to say, it is highly
               unusual for a person to get stuck under his or her own vehicle at
               a public gas station. Even if the person was not injured, there
               was the possibility of some type of mental impairment.


       (Appellant’s App. p. 28). On appeal, Osborne contends that “[t]he trial court

       created an exception to the warrant requirement that does not exist under these

       circumstances.” (Appellant’s Br. p. 6). On the other hand, the State is

       essentially requesting that we affirm the trial court’s extension of the

       community caretaking function exception to validate a traffic stop where an

       officer neither observes a traffic violation nor has any reasonable suspicion that

       criminal activity is afoot. According to the State, “[a] driver impaired by

       physical injury or mental condition endangers both themselves and the public

       by operating a vehicle on public roads.” (Appellee’s Br. p. 12).


[17]   Our court has previously declined to extend the community caretaking function

       to Fourth Amendment privacy protections in a case where a police officer “was

       attempting to ensure the safety of the public by stopping a potentially impaired

       driver.” Killebrew, 976 N.E.2d at 782-83. In Killebrew, a police officer

       conducted a traffic stop after observing that the defendant’s turn signal was

       activated but the defendant continued through an intersection without turning,

       which is not a traffic violation. Id. at 778, 781. Although the officer did not

       observe any traffic infractions, he believed that the driver might be impaired


       Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016    Page 10 of 20
       based on the turn signal. Id. at 778. Because the purpose of the officer’s stop

       was to investigate whether the defendant was intoxicated, we found that “his

       subsequent search was an extension of a criminal investigation and was not a

       product of an administrative caretaking function.” Id. at 783. Conversely, in

       the case at hand, Officer Arnold testified that the initial purpose of his stop was

       to check on Osborne’s welfare because he believed she might need medical

       attention, and the stop only converted to a criminal investigation after Officer

       Arnold detected the odor of alcohol on Osborne’s breath. Nevertheless, we find

       no published Indiana decisions that have extended the community caretaking

       function beyond inventory searches of impounded vehicles.


[18]   Subsequent to Cady—wherein the United States Supreme Court conceived the

       community caretaking doctrine, numerous other state courts have adopted the

       community caretaking function as an exception to the Fourth Amendment

       warrant requirement in situations beyond inventory searches of impounded

       cars. See Cady, 413 U.S. at 441. For instance, the trial court in the instant case

       was persuaded by State v. Acrey, 64 P.3d 594 (Wash. 2003). In Acrey, police

       officers responded to an anonymous call that juveniles were fighting on a city

       street; when the officers located the juveniles, they discovered that “no one had

       been fighting, no one was injured, and no criminal activity was underway.” Id.

       at 596. Yet, because “it was after midnight on a week night in a commercial

       area with no open businesses and no nearby residences[,]” the officers directed

       the minor boys to sit on the sidewalk while the officers called their parents. Id.

       The defendant’s mother requested that the officers drive him home, so before


       Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016   Page 11 of 20
       placing the defendant in the squad car, the officers conducted a pat-down

       search for weapons, which yielded marijuana and cocaine. Id. at 596-97. The

       defendant challenged the constitutionality of the seizure—arguing that his

       detainment exceeded the scope of a permissible Terry stop; in turn, the State

       posited that the defendant’s “encounter with the police officers involved the

       ‘routine check on health and safety’ aspect of the ‘community caretaking

       function’ exception.” Id. at 599-600.


[19]   The Acrey court recognized that “[m]any citizens look to the police to assist

       them in a variety of circumstances, including delivering emergency messages,

       giving directions, searching for lost children, assisting stranded motorists, and

       rendering first aid.” Id. at 599 (alteration in original) (internal quotation marks

       omitted). Thus, the court stated that “[i]n determining whether an officer’s

       encounter with a person is reasonable as part of a routine check on safety, we

       must balance the ‘individual’s interest in freedom from police interference

       against the public’s interest in having the police officers perform a community

       caretaking function.” Id. at 600 (internal quotation marks omitted). This

       reasonableness inquiry requires balancing the competing interests “in light of all

       the surrounding facts and circumstances.” Id. at 599. Ultimately, the Acrey

       court concluded that the officers reasonably acted within their community

       caretaking capacity by detaining the minor defendant in order to contact his

       mother. Id. at 602.


[20]   Like the Acrey court, it appears that the other state courts that have adopted the

       community caretaking function exception “have required, at a minimum, that

       Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016   Page 12 of 20
       the officer’s actions must be measured by a standard of reasonableness.” Poe v.

       Commonwealth, 169 S.W.3d 54, 58 (Ky. Ct. App. 2005). However, the specific

       tests utilized to determine whether an officer acted reasonably “are not

       consistent across all of the jurisdictions.” State v. Lovegren, 51 P.3d 471, 474

       (Mont. 2002). Moreover, “[t]he core of the community-caretaking doctrine . . .

       has been left with little doctrinal guidance from the Supreme Court other than

       the vague command of reasonableness.” State v. Kurth, 813 N.W.2d 270, 273

       (Iowa 2012)). Thus, “[e]laboration of the doctrine has been left to other courts,

       especially state courts. This latter development is not surprising in light of the

       fact that community caretaking is generally the role of local police rather than

       federal officers.” Id. at 273-74.


[21]   Our review of case law in other jurisdictions reveals that a significant number of

       states employ some version of a totality of the circumstances test to assess

       whether an officer’s community caretaking conduct (in the context of a traffic

       stop) is unreasonable such that it violates the Fourth Amendment. 1 In a similar




       1
         See, e.g., State v. Deccio, 34 P.3d 1125, 1128 (Idaho Ct. App. 2001) (requiring the officer to possess a subjective
       belief that an individual is in need of immediate assistance “in view of all the surrounding circumstances”);
       People v. McDonough, 940 N.E.2d 1100, 1109 (Ill. 2010) (utilizing a two part test requiring the officer to “be
       performing some function other than the investigation of a crime” and that the search or seizure “be
       reasonable because it was undertaken to protect the safety of the general public” where the officer’s
       reasonableness “is measured in objective terms by examining the totality of the circumstances”); Trejo v. State,
       76 So.3d 684, 689 (Miss. 2011) (asking “whether a reasonable person, ‘given the totality of the circumstances,
       would believe [the individual] is in need of help’ or that the safety of the public is endangered”); State v. Rohde,
       864 N.W.2d 704, 709 (Neb. Ct. App. 2015) (stating that a court should “assess the totality of the
       circumstances surrounding the stop, including all of the objective observations and considerations, as well as
       the suspicion drawn by a trained and experienced police officer by inference and deduction”), review denied;
       State v. Moats, 403 S.W.3d 170, 188 (Tenn. 2013) (requiring that “the totality of the circumstances must be
       considered to determine whether the police officer was acting within a community caretaking role” which
       Tennessee classifies as a consensual encounter, rather than a seizure, under the Fourth Amendment); Wright

       Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016                               Page 13 of 20
       vein, other courts simply require that there be objective, specific and articulable

       facts that would lead an officer to reasonably believe that a citizen is in distress,

       peril, or otherwise in need of assistance. 2 Finally, there is also a line of

       decisions that require imminent danger or life-threatening circumstances before

       an officer may initiate a traffic stop on less than reasonable suspicion. 3


[22]   Using a combination of elements from the states’ various tests, Wisconsin

       implemented a three-pronged analysis “for evaluating claims of police

       community caretaker functions.” State v. Kramer, 759 N.W.2d 598, 605 (Wis.

       2009). Under Wisconsin’s approach, a court must determine “(1) that a seizure

       within the meaning of the [F]ourth [A]mendment has occurred; (2) if so,

       whether the police conduct was bona fide community caretaker activity; and (3)




       v. State, 7 S.W.3d 148, 151-52 (Tex. Crim. App. 1999) (allowing an officer to “stop and assist an individual
       whom a reasonable person—given the totality of the circumstances—would believe is in need of help” and
       setting forth the following relevant factors to consider: “(1) the nature and level of the distress exhibited by
       the individual; (2) the location of the individual; (3) whether or not the individual was alone and/or had
       access to assistance independent of that offered by the officer; and (4) to what extent the individual—if not
       assisted—presented a danger to himself or others”); Acrey, 64 P.3d at 599 (discussed above); and Ullom v.
       Miller, 705 S.E.2d 111, 122 (W. Va. 2010) (requiring the State to establish four elements, including, in part,
       that “[g]iven the totality of the circumstances, a reasonable and prudent police officer would have perceived a
       need to promptly act” and that the officer “must be able to articulate specific [and objectively reasonable]
       facts that, taken with rational inferences, reasonably warrant the intrusion”).
       2
         See, e.g., Marsh v. State, 838 P.2d 819, 820 (Alaska Ct. App. 1992); Agreda v. State, 152 So.3d 114, 116 (Fla.
       Dist. Ct. App. 2014); Poe, 169 S.W.3d at 58; Lovegren, 51 P.3d at 475-76; and State v. Button, 86 A.3d 1001,
       1003 (Vt. 2013).
       3
         See, e.g., Meeks v. State, 479 S.W.3d 559, 564 (Ark. Ct. App. 2016) (requiring an “objective basis for
       believing that someone in the vehicle was in immediate need of medical assistance or was in imminent
       danger”); State v. Barzacchini, 17 N.E.3d 1186, 1191 (Ohio Ct. App. 2014) (permitting a community
       caretaking stop where “a law enforcement officer [has] objectively reasonable grounds to believe that there is
       an immediate need for his or her assistance to protect life or prevent serious injury”); and Provo City v.
       Warden, 844 P.2d 360, 364 (Utah Ct. App. 1992) (implementing a three-step analysis, which demands, in
       part, that the circumstances objectively “demonstrate an imminent danger to life or limb”), aff’d, 875 P.2d
       557 (Utah 1994).

       Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016                             Page 14 of 20
if so, whether the public need and interest outweigh the intrusion upon the

privacy of the individual.” Id. (quoting State v. Anderson, 417 N.W.2d 411, 414

(Wis. Ct. App. 1987)). During the second step—i.e., whether the police

conduct was bona fide community caretaker activity—“a court considers

whether police conduct is ‘totally divorced from the detection, investigation, or

acquisition of evidence relating to the violation of a criminal statute.’” Id. at

606 (quoting Cady, 413 U.S. at 441). This determination is based on an

examination of the totality of the circumstances as they existed at the time of

the police officer’s conduct. Id. at 608. While a police officer’s subjective intent

may be a factor to consider in the totality of the circumstances, when “an

objectively reasonable basis for the community caretaker function is shown,

that determination is not negated by the officer’s subjective law enforcement

concerns.” Id. The third step—the balance of public needs against individual

privacy interests—assesses whether the officer’s exercise of his/her community

caretaker function was reasonable. Id. at 610. “The stronger the public need

and the more minimal the intrusion upon an individual’s liberty, the more likely

the police conduct will be held to be reasonable.” Id. at 611. Wisconsin courts

consider the following factors in balancing these interests:

        (1) the degree of the public interest and the exigency of the
        situation; (2) the attendant circumstances surrounding the
        seizure, including time, location, the degree of overt authority
        and force displayed; (3) whether an automobile is involved; and
        (4) the availability, feasibility and effectiveness of alternatives to
        the type of intrusion actually accomplished.



Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016      Page 15 of 20
       Id. Applying this test, the Wisconsin Supreme Court determined that an officer

       properly acted within his community caretaker function when he stopped to

       offer assistance to a driver who was parked on the side of the road with his

       hazard lights flashing. Id. at 601, 612. See Kurth, 813 N.W.2d at 277

       (espousing a test similar to Wisconsin’s, but in determining whether an officer

       was engaged in bona fide community caretaker activity, Iowa considers

       whether the conduct falls within “(1) the emergency aid doctrine, (2) the

       automobile impoundment/inventory doctrine, [or] (3) the ‘public servant’

       exception”); and State v. Smathers, 753 S.E.2d 380, 386 (N.C. Ct. App. 2014)

       (adopting Wisconsin’s test).


[23]   Like the “majority of state courts throughout the country” that have adopted

       the community caretaking exception, we recognize that law enforcement

       officers do have community safety and welfare duties beyond their criminal

       investigatory duties. Smathers, 753 S.E.2d at 384. Accordingly, we find that the

       community caretaking function exception may be used as a means of

       establishing the reasonableness of a traffic stop under the Fourth Amendment.

       We further find that the three-pronged test utilized by Wisconsin “provides a

       flexible framework within which officers can safely perform their duties in the

       public’s interest while still protecting individuals from unreasonable

       government intrusions.” Id. at 386. We now apply this test to the specific facts

       of Osborne’s case.


[24]   First, as to whether there was a seizure within the meaning of the Fourth

       Amendment, there is no dispute that Osborne was seized when Officer Arnold

       Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016   Page 16 of 20
       conducted the traffic stop. Turning to the second prong—whether the police

       conduct was bona fide community caretaker activity, we find that Officer

       Arnold articulated a basis for conducting the traffic stop that was unrelated to

       his criminal investigative duties. He testified that his “main focus was the

       concern for the individual’s safety. Were they [sic] hurt[?] Did they [sic] need

       paramedics[?] You know, was it something serious[], the severity of the

       injuries, if any. Things like that.” (Tr. p. 18). While Officer Arnold may have

       possessed some subjective belief that Osborne was impaired when he initiated

       the stop (given his testimony that he “was concerned because . . . it’s not

       normal behavior”), he stated that the basis for the traffic stop was to ascertain

       whether Osborne required medical attention, which is an objectively reasonable

       bona fide caretaking function. (Tr. p. 23).


[25]   Lastly, the third step requires a balance of the public’s need against the

       individual’s privacy interests to determine whether the officer’s conduct was

       reasonable. Kramer, 759 N.W.2d at 610. Here, we conclude that the public

       need and interest did not outweigh the intrusion into Osborne’s privacy.

       Officer Arnold responded to a call that an individual “was stuck underneath her

       vehicle.” (Tr. p. 13). No further details were provided regarding the manner in

       which the person was “stuck” or the severity thereof. (Tr. p. 13). Before he

       even arrived at the scene, Officer Arnold learned that the individual—

       Osborne—had freed herself and was leaving the gas station. There was no

       indication from the reporting source that Osborne was injured, in need of

       medical attention, or otherwise in distress; nor did the caller suggest that


       Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016   Page 17 of 20
       Osborne had demonstrated any other concerning conduct indicative of a mental

       impairment.


[26]   Moreover, Officer Arnold drove behind Osborne and did not personally observe

       any specific behavior that would give rise to a concern that she was in need of

       assistance, such as swerving, weaving, or erratic driving. See Poe, 169 S.W.3d at

       59 (finding the community caretaking exception did not apply where an officer

       stopped an apparently lost driver in order to offer directions as there was “no

       evidence such as a flat tire, flashing lights, jumper cables, a raised hood or any

       other indication that [the defendant] required assistance”); and Button, 86 A.3d

       at 1002, 1004 (concluding that the objective grounds did not provide a

       reasonable basis to believe the driver was in distress where a vehicle stopped on

       the shoulder of a back-country road, where it posed no danger to oncoming

       traffic” and where the defendant “had not been driving erratically”). Instead,

       the fact that Osborne freed herself from her “stuck” position and was able to

       safely drive her vehicle without any incident indicates that the situation did not

       warrant immediate assistance. (Tr. p. 13).


[27]   Furthermore, during the hearing, Officer Arnold stated that if Osborne had

       requested medical attention, his response would have been to summon

       paramedics. We note that if Osborne had desired medical attention, she could

       have easily asked for help at the gas station instead of driving away. See

       Smathers, 753 S.E.2d at 387 (noting that the public’s need and interest in a

       police officer conducting a stop after observing a motorist strike a large animal

       outweighed the defendant’s individual privacy interest, in part, because the

       Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016   Page 18 of 20
       seizure occurred on a “rural and dimly lit stretch of road” and “there was a

       lower probability that [the] defendant could have gotten help from someone if

       she needed it”); see also McDonough, 940 N.E.2d at 1109-10 (finding the

       community caretaker function exception applied where a car was parked

       alongside the road with its emergency flashers activated because “[t]he public

       has a substantial interest in ensuring that police offer assistance to motorists

       who may be stranded on the side of a highway, especially after dark and in

       areas where assistance may not be close at hand”). If there had been any

       articulable facts prior to the stop to support Officer Arnold’s belief that Osborne

       was in immediate need of assistance—such as more details about the nature of

       the incident from the individual who called or any indication that Osborne

       sustained injuries which affected her ability to drive—then our conclusion

       would likely be different. Instead, based on the facts before this court, we

       cannot say that Officer Arnold’s traffic stop was justified pursuant to his

       community caretaking function. 4 Therefore, the evidence obtained as a result

       of the invalid traffic stop should have been excluded.


                                                  CONCLUSION

[28]   Based on the foregoing, we conclude that the community caretaking function of

       police officers may apply to justify a traffic stop where the officer does not

       otherwise observe a traffic violation or have a reasonable suspicion that



       4
         Because we conclude that Officer Arnold’s traffic stop was invalid under the Fourth Amendment, we need
       not address Osborne’s separate argument that the traffic stop violated her rights under Article 1, Section 11 of
       the Indiana Constitution.

       Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016                           Page 19 of 20
       criminal activity is afoot. However, based on the facts of this case, we conclude

       that the exercise of Officer Arnold’s community caretaking function was not

       reasonable and, therefore, violated Osborne’s Fourth Amendment rights.


[29]   Reversed and remanded.


[30]   Pyle, J. concurs


[31]   Kirsch, J. dissents without separate opinion




       Court of Appeals of Indiana | Opinion 29A02-1511-CR-1931 | May 12, 2016   Page 20 of 20
