Police Paternalism: Community Caretaking, Assistance Searches, and Fourth Amendment ReasonablenessWashington and Lee Law Review (2009)
Police spend an estimated two-thirds to four-fifths of their time on “community-caretaking” activities having little or nothing to do with the investigation of crime. Such activities include checking on persons who may be hurt or ill, ensuring that highways are clear and safe for travel, and generally offering assistance to members of the public who need it. When these community-caretaking functions require police to access places where people reasonably expect privacy, the Fourth Amendment requires that they be performed “reasonably.” The Supreme Court, however, has left the specifics of this reasonableness standard undefined, and lower courts have done little to fill the gap. This Article argues that extant tests are inadequate, and courts should apply different tests of reasonableness depending on the party whose assistance is needed. Third-party assistance searches, where the person to be helped is different from the person searched, should be evaluated based on a weighing of the extent of the intrusion, the amount of the harm sought to be avoided, and the likelihood of the police action avoiding that harm. First-party assistance searches, where the person to be helped is the person searched, however, do not require balancing. There, the police essentially act on behalf of the person they are helping. Therefore, the desires of that person should be paramount, and the police should be permitted to act only when they reasonably believe that the person would desire their assistance.
- constitutional law,
- fourth amendment,
- search and seizure
Citation InformationMichael R Dimino. "Police Paternalism: Community Caretaking, Assistance Searches, and Fourth Amendment Reasonableness" Washington and Lee Law Review Vol. 66 (2009)
Available at: http://works.bepress.com/michael_dimino/10/