North Dakota Nice...Or Is It? Part Two

Welcome back to part two of the community caretaking function. As discussed in part one of this blog, community caretaking functions are encounters that are totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. This means a law enforcement officer can approach you in your vehicle as long as his or her actions are totally divorced from investigating a crime. However, the community caretaking function can transform into a seizure if the officer’s actions, if done by another private citizen, would be viewed as threatening or offensive. This conduct can be through an order, threat, display of a weapon, boxing-in a vehicle, approaching a vehicle from all sides with multiple officers, or using emergency lights as a show of authority. So, what if you are not inside a vehicle? Can officers still act in a community caretaking function?

Okay, So I Am Not In My Vehicle. Can Law Enforcement Still Approach Me?

If a law enforcement officer can approach you in your vehicle to make sure that you are doing okay, can they do the same thing in your home? No! The North Dakota Supreme Court has stated that a law enforcement officer cannot enter a person’s residence if the officer is acting in a sole community caretaking capacity. However, the officer may be able to enter your residence under a different exception.

If a community caretaking function can occur in a vehicle but not in your home, what about all of the places in-between? With college resuming and summer slowly coming to an end, many North Dakotans are taking advantage of the last few weeks of warm weather. Let’s say you decide to pull out your lawn chair and enjoy a few fruity cocktails in your front yard. However, between the North Dakota heat and the drinks, you accidentally fall asleep in your front yard. An officer on foot patrol walks by and sees you sleeping. The officer approaches you and awakens you to make sure you are not in danger. While talking with you, the officer notices a heavy odor of alcohol and asks you for identification. You present your North Dakota driver’s license, which displays your age: nineteen; and you are cited for Minor in Consumption. The officer in this hypothetical likely acted in a community caretaking function. This is due to the fact that the officer was making sure you were not in harm’s way instead of investigating a potential crime. However, like the other community caretaking functions, if the officer was investigating a crime because you looked underage, or if he used some conduct that displayed a show of authority (like ordering you to the ground and displaying his badge), the encounter may transform into a Terry stop requiring reasonable suspicion.

But What If You Are Not Sleeping Or In Need Of Assistance?

The terms “community caretaking function” and “casual encounter” are often confused to mean the same thing. However, they are distinguishable and the distinction, although subtle, is important. A recent North Dakota Supreme Court case has elaborated on the difference between a community caretaking function and a casual encounter. As stated above, a community caretaking function is an activity that is totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. Nevertheless, it is not a Fourth Amendment seizure for a police officer to approach and talk with a person in a public place, even while investigating a crime. This behavior is often referred to by courts as a casual encounter. A casual encounter permits a law enforcement officer to approach an individual and talk with them in a conversational manner. A casual encounter only escalates into a seizure if the officer orders a person to do something, demands a response, or threatens an individual with a show of authority.

An example of a casual encounter would be if an officer notices you are stumbling down the street in a drunken stupor, and suspects you are underage. In this scenario, there is no valid community caretaking function because the officer is investigating a possible crime (Minor in Consumption/Minor in Possession). Nonetheless, the officer is permitted to approach you and have a conversation with you. When the officer approaches you, he may ask you about your night, if you have been drinking, and he may request to see your identification. While talking with you, but before you hand over your identification, the officer notices an odor of alcohol. You hand the officer your identification and he recognizes you are twenty years old. The officer subsequently cites you for MIC/MIP. This encounter would likely be deemed a casual encounter even though the officer was investigating a potential criminal violation because the officer approached you and talked with you in a conversational manner. Contrarily, there would not be a casual encounter if you hear “Stop Police!” and turn around to see multiple officers sprinting towards you with their guns drawn. At this point, the officers have escalated the casual encounter by ordering you to do something and using a show of authority.

An officer may only stop a citizen for an investigation when the officer has a reasonable and articulable suspicion that a law has been or is being, violated. Therefore, if an officer approaches you in a casual encounter setting, you may freely walk away until you are ordered by the officer to stop. At this point, after the order or show of authority, you would likely be required to stop at the officer’s request, which would result in a seizure. There is a possibility that if you do not stop when you are ordered to by an officer, you may be subject to the charge of Refusal to Halt, a class B misdemeanor, under N.D.C.C. § 12.1-08-11. Thus, it is important to recognize the difference between a seizure and a casual encounter. If the officer stops you and you are not free to leave, the stop would likely constitute a seizure under the Fourth Amendment which would require the officer to have reasonable suspicion to justify the stop. If he does not have reasonable suspicion to justify the stop, the evidence resulting in the unlawful seizure could be suppressed and your criminal charges may be dismissed.

In Conclusion

Charges that stem from a law enforcement officer acting in a community caretaking function or that are a result of a casual encounter, are complex, and seeking legal representation may be in your best interest to ensure that your constitutional rights are being protected.

If you have a criminal issue in North Dakota, please do not hesitate to call our Criminal Defense Team in Fargo at 701-297-2890.

This article is only meant to provide general information and does not constitute legal advice.

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