This installment of The Corner will tackle the “emergency aid doctrine.”

Bulletin Disclaimer:

I am not an attorney and make no claim to be an attorney. I developed this scenario/training bulletin based on my 38 years of law enforcement experience, my professional application of the Fourth Amendment (based on case law) in the field as a law enforcement officer, and my extensive study of case law pertaining to search and seizure.   

I developed and am providing this training bulletin for information only. I make no claim that my interpretations and perceptions of case law provided in the answers to the scenarios are correct in any or all circumstances. All government agents and any other person gathering information from this presentation should consult their respective law enforcement agencies, City Attorney’s Office, District Attorney’s Office, State Attorney General’s Office, or United States Attorney’s Office for their interpretation and application of this information. 

Scenario: You get a call regarding a welfare check. The notes in the call state that the employer of Joe Smith called and asked that police go to Joe’s residence to check on Joe’s welfare, because Joe failed to show up for work today (Monday), and Joe has never missed work in 30 years without calling in. According to Joe’s employer, Joe has not talked to anyone at work since Joe left work on Friday evening at 5:00 pm. You respond to Joe’s house, see that there are three newspapers (Saturday, Sunday, and Monday’s newspapers) lying on the porch (as if they were thrown there from the delivery person), and Joe’s car is in the driveway. You look around Joe’s house and don’t see any evidence of any problems (the doors and windows aren’t broken); however, you can smell a pretty strong and pungent odor (it smells like something is dead) coming through a slightly open bathroom window. Have you ever had a scenario similar to this? What did you do? What can you legally do?      

The Fourth Amendment and the home

The Fourth Amendment stands on the premise that an individual’s home is his or her castle and that entry into an individual’s home by government officials, absent a warrant, in most circumstances, is unreasonable.

Exceptions to the warrant requirement; The United States Supreme Court’s three-step analysis for warrantless entries

There are, however, exceptions to the warrant requirement, one such exception being the emergency doctrine. The United States Supreme Court has never directly addressed the permissible scope of this exception; however, the Court has deemed such entries to be a variant of the exigent circumstances exception to the warrant requirement. Courts across the United States use the following three-step analysis to determine if a warrantless entry based on the emergency doctrine is acceptable: (1) whether the police had an objectively reasonable basis for believing there was an emergency, (2) whether the police action was motivated by a primary purpose to investigate or seize evidence, and (3) whether the scope and manner of the intrusion was reasonable under the circumstances. Two examples of United States Supreme Court decisions using the three-step analysis are Brigham City v. Stuart, 547 U.S. 398 (2006) and Michigan v. Fisher, 558 U.S. 45 (2009).

• Brigham City v. Stuart, 547 U.S. 398 (2006): Officers responded to a 3 a.m. call about a loud party. When officers arrived at the house in question, they heard shouting inside, proceeded down the driveway, and saw two juveniles drinking beer in the backyard. The officers entered the yard, and then saw, through a screen door and windows, an altercation in the kitchen between four adults and a juvenile, who punched one of the adults, causing him to spit blood in a sink. An officer opened the screen door and announced the officers’ presence. The officers arrested respondents and charged them with contributing to the delinquency of a minor and related offenses. The Court held that officers may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.
• Michigan v. Fisher, 558 U.S. 45 (2009): Officers responded to a residential disturbance and found three broken house windows, a truck with a smashed front end in the driveway, and damaged fence posts along the side of the property. Officers saw blood on the hood of the truck, on clothes inside of it, and on one of the doors to the house. Fisher was inside the house screaming and throwing things. Officers, seeing a cut on Fisher’s hand, asked Fisher if he needed medical attention. Fisher did not answer the question and instead told the officers to get a warrant. One of the officers entered the house and found Fisher pointing a gun at him. Fisher was ultimately arrested and charged with assault with a dangerous weapon and possession of a firearm during the commission of a felony. The United States Supreme Court found the entry into the house was justified by the emergency aid exception to the warrant requirement.

Application of the emergency doctrine in Colorado

Regarding the application of the emergency doctrine in Colorado, according to People v Amato, 193 Colo. 57; 562 P.2d 422; 1977 Colo. LEXIS 581:

The Colorado Supreme Court cited a list of factors relevant to the consideration of exigent circumstances which included (1) urgency; (2) time needed to get a warrant; (3) reasonable belief contraband would be removed or destroyed; and (4) possibility of danger to police guarding contraband while the warrant would be obtained…. In Colorado we have previously recognized the emergency doctrine but have not had cases which would justify its application. See Condon v. People, 176 Colo. 212, 489 P.2d 1297 (1971), and People v. Boorem, supra. Nevertheless, these cases leave no doubt that obtaining evidence or seizing contraband under the emergency doctrine must involve an immediate crisis and the probability that assistance will be helpful. 

The Colorado Supreme Court cited several cases from other states and federal circuits when it decided the Amato case. One case the Colorado Supreme Court cited was State v. Sanders, 8 Wash. App. 306, 506 P.2d 892, 895 (1973). In this case, the court stated that it would only allow a warrantless entry into a residence based on an emergency doctrine exception “to render emergency aid and assistance to a person whom they reasonably believe to be in distress and in need of that assistance.” The court further stated that in order to justify the entry based on the emergency doctrine, “the officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”

The 10^th Circuit’s view on the community caretaker doctrine

There 10^th Circuit has addressed warrantless entries into residences to render aid under what is referred to as the “community caretaker doctrine.” One such case, State v. Nemeth (New Mexico, 2001), involved officers responding to the residence of a reported suicidal party and upon arriving, the officers walked around the house, and knocked on the front door and windows of the residence several times, receiving no response. In addition, the officers observed that “the house was dark with no sign of activity inside.” The officers eventually saw someone looking at them from inside the house and made contact with the individual. The individual told the officers to leave; however, the officers, who observed the individual crying, did not leave, and eventually forced their way into the residence to contact the individual re: concern for the individual’s safety. Once inside with the individual, the officers were assaulted by the individual, and the individual was taken into custody and charged with Battery on a Police Officer. This case went to the New Mexico State Court of Appeals, which rendered the following thoughts and conclusion:    

 A response by law enforcement officers to a call seeking assistance in regard to a possible suicide inside a home can be characterized both as the rendering of emergency aid or assistance and the rendering of assistance out of a concern for a person’s safety and welfare. The activity falls within a more generic community caretaking function. The primary characteristic of community caretaking that sets this function apart from criminal investigative and enforcement activity is the absence of concern about violations of law on the part of the law enforcement officer. As long as the facts of a particular case meet the test for the community caretaking function that we set out below, that function can properly take its place in our jurisprudence as an exception to the Fourth Amendment warrant requirement.

Intrusion into a home acting in a community caretaker capacity is governed by the Fourth Amendment and its fundamental and underlying principle of reasonableness. The test of legitimacy under the community caretaker doctrine is whether the officers’ actions were objectively reasonable and in good faith. More particularly, the officer must have a reasonable and articulable belief, tested objectively, that a person is in need of immediate aid or assistance or protection from serious harm. See Carlson, 548 N.W.2d at 140-42; Commonwealth v. Waters, 456 S.E.2d 527, 530 (Va. Ct. App. 1995); Davis, 497 N.W.2d at 921…

The Fourth Amendment exception permitting warrantless entry into a home in the performance of community caretaking functions can be invoked only “when the police are not engaged in crime-solving activities.” Davis, 497 N.W.2d at 920. Furthermore, “the entry must be limited to the justification therefore, and the officer may not do more than is reasonably necessary to determine whether a person is in need of assistance, and to provide that assistance.” Id. at 921…

In denying Defendant’s motion to suppress, the trial court found that the officers had probable cause to enter Defendant’s home, that all of the surrounding circumstances supported the officers’ reasonable belief that Defendant was or might be suicidal, that none of those circumstances would dispel a reasonable person’s belief that Defendant was suicidal, and that the officers’ actions were reasonable. These determinations follow from the facts, and we see no basis to conclude that any is erroneous. While the court did not specifically mention the community caretaker doctrine in its order denying Defendant’s motion to suppress, we think that the court’s conclusion was completely consistent with and supported by that doctrine.

The officers’ actions constituted a check on the welfare of a person the officers reasonably believed to be in need of immediate assistance, and a reasonable, limited effort to determine if they could assist that person. This is a public service that fits squarely within a police officer’s community caretaking function. A warrantless entry into a home that passes the community caretaker test is an exception to the Fourth Amendment. Therefore, no warrant to enter Defendant’s home was required. The trial court here did not err in denying Defendant’s motion to suppress.

Limitations on warrantless entries in Colorado

Now, getting back to our scenario and whether you can legally enter Joe’s residence, in Condon v. People (1971), the Colorado Supreme Court found that officers responding to the call of a strong odor, possibly caused by a decomposing body, did not constitute an emergency justifying a warrantless entry into an apartment:  

In Condon, the owner of a rental property discovered an odor like that of a decomposing body and called the police to investigate. The police came and searched the house without a warrant from top to bottom even though the odor was strongest in the basement. No body was ever discovered but the officers found drugs and boxes of chemicals suitable for making mescaline. We there held that the odor of a decomposing body did not constitute an emergency justifying a warrantless entry. The decaying odor was itself evidence assistance was no longer possible.

Using the court’s rationale pertaining to warrantless entries based on the emergency doctrine and the Condon case, which set a precedent in Colorado, law enforcement and fire personnel cannot make a warrantless entry into a residence to conduct a simple welfare check based on information that does not: (a) amount to an emergency, (b) involve an immediate crisis, or (c) amount to the probability that assistance will be helpful. Certainly, as the Condon case indicated, there is no immediate crisis and you cannot render aid to an individual that is already dead and decomposing.    

Answer to the scenario

You are not legally allowed to enter the home without a warrant.

Implications of making a warrantless entry, safety concerns, and potential legal ramifications

Yes, I do understand that if you do make a warrantless entry into the home and find Joe dead, he cannot contest your entry (unless he is able to rise from the dead, but I only know of one person who has done this in the history of the world, so it is highly unlikely). However, if you find incriminating evidence that can be tied to someone else that does have standing, an expectation of privacy, and can contest the entry, the evidence, more than likely, can and will be suppressed. This could have implications if Joe had been murdered by someone that had standing in the house.  

Additionally and possibly even more concerning than the above scenario are the potential legal and safety issues officers may face if they make a warrantless entry into a home without the requisite legal justification to do so and come face-to-face with the homeowner who has a gun in his hand. This scenario could have several tragic endings including the following: (1) the homeowner raises the gun and points it at officers who then fire their weapons and wound or kill the homeowner; and (2) the homeowner raises the gun to his head and shoots and kills himself. If either one of the above scenarios occurs, the officers and their Police Department will more than likely be sued for violating the homeowner’s Fourth Amendment rights and may face a wrongful death lawsuit. Regarding officer safety issues, another possible outcome is the homeowner shoots and wounds or kills an officer or multiple officers. In this tragic scenario, the surviving officers will potentially face legal ramifications for violating the homeowner’s Fourth Amendment rights and the homeowner may avoid prosecution for wounding or killing the officer(s).     

Hopefully, this paper provides insight into and a better understanding of the nature and legality of warrantless entries based on the emergency doctrine. If you have any questions, comments, suggestions, etc., please contact me. 

Be Safe,

Eric      

The ability to understand and use influence to create motivation in others is a fundamental skill that sets successful leaders apart. Effective leaders have a clear understanding of the different sources of influence that drive human behavior and they know how to use them to create motivation. Reflecting on one’s experiences can provide valuable insights into the various sources of influence that drive actions. Please take a couple of moments to recall instances when you found yourself completing a task based on distinct motivating factors.

• Think of a time when someone asked you to do something, and you did it because you liked or admired that person.
• Think of a time when someone asked you to do something, and you did it because the person offered you something you valued in return for completing the task.
• Think of a time when someone asked you to do something, and you did it because the person had the authority over you to demand you do what the person asked.
• Think of a time when someone asked you to do something, and you did it because the person was an expert in the thing the person asked you to do.
• Think of a time when someone asked you to do something, and you did it because you were afraid something negative would happen to you if you didn’t.

Now that we’ve stirred up some memories, it becomes clear that influence comes from multiple facets of our relationships and social dynamics. French and Raven’s Power Base Taxonomy presents an invaluable framework that allows us to dissect the sources of power individuals utilize to influence and create motivation in others. In the following, we will identify and discuss the five power bases, explain how each base is used to create motivation, and discuss research findings into each base’s effectiveness.  

The five power bases

1. Legitimate Power: This power base comes from a person’s position or title within an organization.
2. Reward Power: This power base comes from the ability to give rewards, such as bonuses or promotions.
3. Coercive Power: This power base comes from the ability to give punishments.
4. Expert Power: This power base comes from having knowledge or expertise in a particular area.
5. Referent Power: This power base comes from being respected or admired by others.

Tying the power bases to influence and motivation

Now that we’ve identified the power bases, let’s talk about how they tie into influence and motivation. Influence is the ability to persuade or affect someone’s behavior or decisions, while motivation is the drive to take action. Each power base has a different way of influencing, which creates motivation in others:

• Legitimate Power: This power base can influence and create motivation in others based on the supervisor’s authority. For example, a supervisor has the ability to give orders and the employee has the responsibility to follow the orders given based on the supervisor’s authority.  
• Reward Power: This power base can influence and create motivation in others by offering incentives for achieving goals and recognizing hard work. The key to reward power is the person who is offered the reward must value it. If not, the reward may not create motivation in the person to complete the task.
• Coercive Power: This power base can influence and create motivation in others by creating fear of negative consequences (or discipline) for not meeting expectations or following through with the order(s) given.
• Expert Power: This power base can influence and create motivation in others by providing guidance and mentorship based on knowledge and expertise.
• Referent Power: This power base can influence and create motivation in others by setting an example of behavior and inspiring others to follow their lead. Think about a great coach or great boss/leader you have had. You will walk through fire for those that hold referent power with you.  

Research findings concerning the effectiveness of the power bases

Research has shown the most effective power bases for positively influencing and motivating others are referent power and expert power. Studies have revealed that leaders who actively cultivate and possess referent power have a remarkable impact on their teams. They emerge as genuine role models, build trust, and attract admiration through their personal qualities like honesty and integrity. Leaders that nurture referent power can shape a positive and inspiring organizational culture, fuel motivation, and foster a strong sense of loyalty among their followers. Concerning expert power, studies have shown that followers perceive expert power leaders as competent and trustworthy. Consequently, their followers exhibit elevated levels of motivation and commitment. To illustrate, let’s delve into a study conducted among nurses and their supervisors. The results revealed that nurses working under supervisors with significant levels of expert power reported higher job satisfaction and greater commitment to the organization. It’s clear that when leaders actively demonstrate their expertise, it has a profound impact on the engagement and dedication of their team members.

Anecdotally, I have conducted an exercise that explores behaviors associated with good and bad leaders in training and university settings with over 2,000 people. The exercise identifies the power bases the behaviors demonstrate. The result of the exercise is always the same, the referent and expert power bases are associated with good leaders while poor leaders rely on legitimate and coercive power bases.  

I must note that while the referent and expert power bases are considered the most effective in fostering positive influence and motivation, leaders must actively comprehend all the power bases. They need to consciously choose the suitable power base(s) to influence and motivate based on the follower and the specific situation at hand. By understanding the dynamics of each power base, leaders can skillfully navigate the complexities of their role, ensuring optimal influence and motivation for their team members.

Use the power of influence to inspire, lead, and make a positive impact

Influence and motivation, guided by French and Raven’s Power Base Taxonomy, hold the key to exceptional leadership. By understanding the five power bases within the taxonomy – legitimate, reward, coercive, expert, and referent – we gain invaluable insights into how leaders leverage these power bases to create motivation and inspire action. Each power base possesses its own unique way of influencing others, whether it’s through authority, rewards, consequences, expertise, or respect and admiration. Armed with this knowledge we can grow and improve as a leader. Remember, your influence matters. Unleash the power of influence, inspire and create motivation in others, and make a lasting impact!

This installment of The Corner will address how officers can deal with drivers and passengers during traffic stops.   

Bulletin Disclaimer:

I am not an attorney and make no claim to be an attorney. I developed these scenarios based on my 38 years of law enforcement experience, my professional application of the Fourth Amendment (based on case law) in the field as a law enforcement officer, and my extensive study of case law pertaining to search and seizure.

I developed and am providing this presentation for information only. I make no claim that my interpretations and perceptions of case law provided in the answers to the scenarios are correct in any or all circumstances. All government agents and any other person gathering information from this presentation should consult their respective law enforcement agencies, City Attorney’s Office, District Attorney’s Office, State Attorney General’s Office, or United States Attorney’s Office for their interpretation and application of this information. 

Dealing with drivers and passengers in vehicles:

I have fielded several questions recently regarding dealing with passengers in vehicles. As such, I felt compelled to draft this training bulletin to address the handling of passengers in vehicles stopped for a traffic violation only. When a vehicle is stopped on a routine traffic violation and there are passengers in the vehicle, the passengers are seized and are subject to some commands by officers absent any reasonable suspicion. In the following, I will explain what I mean and provide the cases that apply.

Passenger Seizure: The Impact of Brendlin v. California (2007) and Arizona v. Johnson (2009):

When officers make a stop on a vehicle for a traffic violation, the U.S. Supreme Court, in Brendlin v. California (2007) and Arizona v. Johnson (2009), ruled that all passengers are seized for the duration or the stop. The Court changed precedent regarding a passenger’s standing in a vehicle stopped for a traffic violation with its Brendlin v. California decision.

Pre-Brendlin: The “free-to-leave” rule:

Prior to the Brendlin ruling, passengers, in vehicles stopped only for a traffic violation, were free to leave at any time as the passengers were not the subject of the stop. If the passengers stayed and during the course of the stop the officer developed reasonable suspicion that the passengers were engaged in criminal activity, then the officer could detain the passengers. In the Brendlin decision, the Court, citing several cases (Florida v. Bostick, 1991; Terry v. Ohio, 1968; United States v. Mendenhall, 1980; Colorado v. Bannister, 1980, and several others), made the following comment concerning a passenger’s mindset when the vehicle he or she is riding in is stopped, whether for a traffic violation or reasonable suspicion: “We think that in these circumstances any reasonable passenger would have understood the police officers to be exercising control to the point that no one in the car was free to depart without police permission.” This ruling meant that passengers, in the Court’s eyes, were seized at the time of the stop and as a result could contest the validity of the stop. Prior to Brendlin, passengers could not contest the validity of the traffic stop.    

Passenger seizure and commands: Arizona v. Johnson clarification:

The Court further clarified its stance regarding passengers being seized during a traffic stop in Arizona v. Johnson, (No. 07-1122), 217 Ariz. 58, 170 P. 3d 667 (2009). According to the Court:

A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene and inform the driver and passengers, they are free to leave.

Commanding passengers to exit the vehicle:

The Arizona v. Johnson case clarified that passengers are seized throughout the length of the stop. That said, regarding giving passengers commands, on a traffic violation-only vehicle stop, an officer can order the driver and passengers out of the vehicle without any reasonable suspicion or probable cause to believe the driver and passengers are armed and dangerous. The Court made this decision based on the inherent danger to officers when conducting traffic stops. In Pennsylvania v. Mimms (1977) the Court stated:

It is always reasonable during a valid vehicle stop for an officer to order the driver of a vehicle to get out of the vehicle for a face-to-face confrontation without reasonable suspicion that the driver is a threat to the officer…. It would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.

The Court, in its Maryland v. Wilson (1997) ruling, expanded its Pennsylvania v. Mimms ruling to include all passengers of the vehicle. What this means is that an officer can order (command) all occupants of a vehicle out without any particularized reason to believe the passengers are armed and dangerous and the passengers must comply. If a passenger does not comply, the passenger is subject to arrest for failing to obey a lawful order.

Passengers’ Seizure and the Terry “Stop and Frisk”:

Another ruling (one can surmise) that came out of the Arizona v. Johnson case is the seizure of the occupants of the vehicle (based on the stop) satisfies the “stop” portion of the Terry “stop and frisk.” As you know, the Terry “stop and frisk” is actually two parts: the stop and the frisk. An officer can detain (stop) an individual based on reasonable suspicion, but that does not give the officer the right to pat down the individual. The officer must articulate a reason to believe that the individual is armed and or dangerous in order to conduct a pat down. If the officer cannot, the officer cannot pat down the individual.

In the Arizona v. Johnson case, an officer made a traffic stop for a valid traffic violation and upon approaching the vehicle, the officer saw that the vehicle had three occupants and noticed that the rear seat passenger appeared to be a gang member based on the occupant’s clothing attire. The officer advised the driver of the reason for the stop and another officer began talking to the rear seat passenger. The rear seat passenger told the officer that he lives in an area that the officer knew has a large street gang. The passenger also told the officer that he had spent some time in prison for a crime and had been out of prison for a year (the passenger was not on parole or probation). The officer asked the passenger to exit the vehicle so that the officer could talk to the passenger—out of ear shot of the other occupants—about the passenger’s possible gang affiliation. The passenger complied and after he exited the vehicle the officer, absent consent or reasonable suspicion to believe that the passenger was currently, had been, or was about to be engaged in criminal activity, patted down the passenger based on the passenger’s clothing, his possible gang affiliation, and the officer’s knowledge that gang members often carry weapons; all of which led the officer to reasonably believe the passenger was armed and or dangerous. During the pat-down search, the officer recovered a handgun from the passenger’s waistband. The officer placed the passenger under arrest for carrying a concealed weapon.

The Role of Arizona v. Johnson in the Terry (stop and frisk) application:

In reviewing the Arizona v. Johnson case, the Court ruledthe pat down and arrest were valid. The Court reiterated that passengers were seized for the duration of a traffic stop; that a police officer effectively seizes everyone in the vehicle, the driver and all passengers. Since the passengers are seized, they can be subject to a pat-down search, absent consent, based on an officer’s reasonable belief that the subject is armed and or dangerous. The Court’s reasoning is based on the landmark Terry v. Ohio (1968) decision concerning investigatory stops. According to the Court:

Terry established that, in an investigatory stop based on reasonably grounded suspicion of criminal activity, the police must be positioned to act instantly if they have reasonable cause to suspect that the persons temporarily detained are armed and dangerous. Because a limited search of outer clothing for weapons serves to protect both the officer and the public, a pat down search is constitutional.

In the Arizona v. Johnson ruling, the Court provided the following discussion concerning occupants detained for the duration of the stop and the danger that the driver and occupants pose to an officer during the traffic stop:

Traffic stops, which “resemble, in duration and atmosphere, the kind of brief detention authorized in Terry,” Berkemer v. McCarty, 468 U. S. 420 , are “especially fraught with danger to police officers,” Michigan v. Long, 463 U. S. 1032 , who may minimize the risk of harm by exercising “ ‘unquestioned command of the situation,’ ” Maryland v. Wilson, 519 U. S. 408 . Three decisions cumulatively portray Terry’s application in a traffic-stop setting. In Pennsylvania v. Mimms, 434 U. S. 106 (per curiam), the Court held that “once a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment ,” id., at 111, n. 6, because the government’s “legitimate and weighty” interest in officer safety outweighs the “de minimis” additional intrusion of requiring a driver, already lawfully stopped, to exit the vehicle, id., at 110–111. Citing Terry, the Court further held that a driver, once outside the stopped vehicle, may be patted down for weapons if the officer reasonably concludes that the driver might be armed and dangerous. 434 U. S., at 112. Wilson, 519 U. S., at 413, held that the Mimms rule applies to passengers as well as drivers, based on “the same weighty interest in officer safety.” Brendlin, 551 U. S., at 263, held that a passenger is seized, just as the driver is, “from the moment [a car stopped by the police comes] to a halt on the side of the road.” A passenger’s motivation to use violence during the stop to prevent apprehension for a crime more grave than a traffic violation is just as great as that of the driver. 519 U. S., at 414. And as “the passengers are already stopped by virtue of the stop of the vehicle,” id., at 413–414, “the additional intrusion on the passenger is minimal.

Now that we know that passengers are considered seized during a traffic stop, we must address the question: Can an officer require passengers to provide identification? 

Before answering the above, we must first answer the question, is simply asking passengers (in vehicles stopped for a traffic infraction only) for identification legal? Numerous states (e.g., Massachusetts, Minnesota, New Mexico, New Jersey, and Washington) do not allow officers to ask for a passenger’s identification without a minimum of reasonable suspicion to believe the passenger is, was, or is about to be engaged in criminal activity (See Commonwealth v. Alvarez, 44 Mass. App. Ct. 531, 692 N.E.2d 106, 1998   State v. Johnson, 645 N.W.2d 505, 510, Minn. Ct. App., 2002; State v. Affsprung, 87 P.3d 1088, 1093, N.M. Ct. App. 2004; Hornberger v. Am. Broad. Cos., 351 N.J. Super. 577, 613, 799 A.2d 566, 2002; State of Washington v. Rankin, 2004).

Colorado’s stance:

Fortunately, Colorado agrees with the United States Supreme Court that merely asking a passenger in a vehicle for identification does not constitute a seizure of the person (People v. Paynter, 955 P.2d 68, 75, Colo. 1998).

Since we know Colorado allows offers to ask for a passenger’s identification during a traffic stop, we must address whether the passenger, who is seized, is compelled, as a result of the seizure, to provide information to an officer upon the officer’s command. Unfortunately, in its opinions on the Brendlin and Johnson cases, the United States Court did not answer the question regarding if passengers are compelled to provide their information on the officer’s command just based on being seized as a result of the stop. As such, I rely on the following cases to answer this question: Hiibel v. Nevada (2004); Stufflebeam v. Harris (8th Cir. 2008); and Terry v. Ohio (1968).

Terry v. Ohio (1968) is the landmark case that addressed reasonable suspicion contacts. Terry v. Ohio set the precedent, which other cases have followed, that allows officers to demand information (e.g., name, date and date of birth) from individuals suspected of criminal activity and compels individuals detained (for reasonable suspicion) to provide such information. In Hiibel v. Nevada (2004), the Court considered the constitutionality of an arrest based on the failure of an individual to identify himself to police during a valid “Terry” stop. The Court ruled upheld the arrest and conviction of Hiibel for refusing to identify himself, and provided the following comments:

…obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense or has a record of violence or mental disorder.  On the other hand, knowing (a person’s) identity may help clear a suspect and allow the police to concentrate their efforts elsewhere.  Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault.  Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.

In Colorado, according to 16-3-103 (1) C.R.S.: 

A peace officer may stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime and may require him to give his name and address, identification if available, and an explanation of his actions. A peace officer shall not require any person who is stopped pursuant to this section to produce or divulge such person’s social security number. The stopping shall not constitute an arrest.

While individuals who are seized based on the Terry rationale are compelled to identify themselves to officers, passengers who are also seized are not. While both are seized, the difference lies in the reasons surrounding the seizures. Passengers in vehicles are seized as the result of the driver’s traffic infraction and subsequent stop, not because of the belief they are involved in criminal activity.

Passenger Exception: Stufflebeam v. Harris (8th Cir. 2008):

This is exactly what the 8^th Circuit Court of Appeals determined in its Stufflebeam v. Harris (8th Cir. 2008) decision that officers cannot require passengers to provide identification during a traffic stop for a traffic violation only.

Officer Harris stopped a vehicle for a traffic infraction and upon contacting the driver and the passenger (Stufflebeam), Officer Harris, absent any reasonable suspicion to believe that Stufflebeam was involved in criminal activity, commanded Stufflebeam to provide identification. Stufflebeam refused and Officer Harris ultimately arrested Stufflebeam for his refusal. The 8^th Circuit Court of Appeals, citing Hiibel and Terry, found that Stufflebeam’s arrest violated his constitutional rights. Below is a portion of the opinion:     

In applying the principles from Hiibel to the circumstances involving Stufflebeam’s arrest, the court noted that Officer Harris had no reasonable suspicion to believe that Stufflebeam was involved in criminal activity; he was merely a passenger in a vehicle stopped for motor vehicle violations.  As such, Hiibel would not justify his arrest since the rule from Hiibel requires that the person(s) being asked to identify themselves must be the subject of a valid Terry stop, i.e. they must be suspected of criminal activity and that suspicion must be supported by reasonable suspicion.  Even though Arkansas is one of the states that has a statute requiring person(s) to identify themselves during a valid Terry stop, the court concluded that Stufflebeam was not the subject of such a stop.  Thus, the court concluded that Mr. Stufflebeam’s lawsuit against the officer should go on to a jury. (Stufflebeam v. Harris [8th Cir., 2008])

Based on the above, the answer to the question is “no,” an officer cannot require passengers to provide identification without reasonable suspicion to believe they are, were, or are about to be engaged in criminal activity.

This training bulletin provides valuable information for officers concerning the handling of drivers and passengers during traffic stops. It highlights the United States Supreme Court rulings that changed the “free-to-leave” precedent to a seizure precedent due to the stop, which allows passengers the legal ability to contest the validity of the stop. The bulletin also clarifies that officers can require the driver and passengers to exit the vehicle without reasonable suspicion or probable cause, based on the need for officer safety during traffic stops. Additionally, it addresses the issue of passengers providing identification, with some states prohibiting officers from asking for identification without reasonable suspicion, while others, like Colorado, allow it. Finally, the bulletin identified, based on the Stufflebeam v. Harris case, that officers cannot compel passengers to provide identification during a traffic stop for a traffic violation only. Overall, this training bulletin serves as a valuable resource for law enforcement officers navigating the complex dynamics of traffic stops involving drivers and passengers.

I hope this bulletin provides clarification on dealing with passengers in vehicles stopped for a traffic infraction only. Please reach out with any comments or questions.

Have you ever experienced unfair treatment at work? Have you ever felt like someone undeserving or unworthy got a promotion or position you wanted? Have you ever felt like you did not get the position you wanted because of a rigged process?  In other words, have you ever felt like the organization screwed you? If so, I want you to take a few moments and think about how you reacted to the situation. Did you stop working as hard? Did you start working harder? Did you file a complaint or grievance? Did you give up? Did you leave the organization?  

If you ever experienced these feelings and could not understand why, read on, as there is a theory for that. Adams’ equity theory identifies and explains the cause of your feelings and responses to perceived unfair treatment. In the following, we will discuss equity theory, the responses/coping mechanisms people use when feeling unfairly treated, and how you, in a leadership position, can help people overcome the equity issue(s) they are feeling.

What is equity theory?

So, what is this equity theory anyway? According to Adams’ equity theory, Individuals want and expect fair treatment. As such, individuals compare their inputs (effort, skills, and time) and outcomes (pay, training, promotion, and recognition) to those of their peers. If you perceive your inputs and outcomes are equal to your peer(s), you will feel a sense of fairness and equity. However, if you perceive your inputs and outcomes are not equal to your peer(s), you will experience feelings of inequity. In other words, if you are competing for a position with someone and you believe the person is just as qualified as you, more than likely if that person gets the position, you will not have an equity issue. However, if you believe that person is lesser qualified than you and the person gets the position, there is a good chance you will feel a sense of unfairness due to the outcome.  

When the sense of unfairness or inequity sets in, a person can become grumpy and upset, which will affect behavior. You might see the person, who is normally upbeat, friendly, and positive become pessimistic, unpleasant, and negative. You may hear the person complaining about how the coworker got a promotion the person deserved because the coworker is a friend of the supervisor. That kind of negativity can spread faster than a rumor about free donuts in the break room.

Coping mechanisms:

This sense of unfairness can lead the person to use various coping mechanisms to restore the person’s sense of fairness. Such coping mechanisms can include:

• Altering inputs: A person may slow down or reduce the level of effort or skill the person normally puts out based on the perceived unfair treatment. For example, if the person believes the coworker who got the promotion is half the worker the person is, the person may slow work effort to match the coworker’s perceived level of effort.

• Altering outcomes:  A person may file a complaint or grievance in order to change the outcome of the perceived inequity.  This is a common response to perceived inequity. Another way a person might experience unfairness and alter outcomes is when the person feels overrewarded (i.e., the outcome is better than expected). The person might attempt to decrease the outcome to restore the person’s perception of fairness.  

• Psychological distortion: The person distorts the person’s inputs or outcomes. One example of psychological distortion is the person does not do well on a test, so the person states, “I did not have time to study” or “The test was rigged” to favor the coworker who did better on the test.

• Acting on the reference source: This is accomplished when the person attempts to get the coworker (who is the person’s reference source) to either reduce efforts or reduce the outcome. For example, the coworker is working much harder than the person, so the person goes to the coworker and tries to get the coworker to slow down.

• Leaving the field: The person decides to transfer from the person’s current position or leave the organization due to the perceived unfair treatment.

• Changing the reference source or comparison other: The person stops comparing inputs and outcomes to the coworker who is the perceived source of the person’s inequity.  

Why is understanding equity theory important?

Understanding equity theory is crucial for individuals experiencing feelings of unfairness for the following reasons.

• Self-awareness: Understanding equity theory allows individuals to gain self-awareness about their own reactions and emotions when faced with unfair treatment. It helps them recognize that their feelings of discontent or frustration are natural responses to perceived inequity.

• Validation of feelings: Equity theory provides a framework to validate and make sense of the emotions experienced when treated unfairly. It helps individuals realize that their feelings are legitimate and that others may have similar reactions in similar circumstances.

• Clarity on fairness expectations: By understanding equity theory, individuals can clarify their own expectations of fairness and evaluate whether those expectations align with the situation at hand. This helps in assessing the degree of unfairness and developing a clearer perspective on what they consider to be fair treatment.

• Assessing contributions and outcomes: Equity theory encourages individuals to assess their own contributions and outcomes in a given situation. It prompts them to reflect on the effort, time, and resources they have invested and compare them to the rewards or recognition received. This evaluation can provide insights into the perceived inequity and guide potential actions.

• Empowerment for action: Understanding equity theory empowers individuals to take proactive steps to address unfairness. It enables them to identify potential resolution techniques such as confrontation, seeking support, or altering inputs or outcomes, as discussed in the theory. This empowerment encourages individuals to advocate for themselves and work towards resolving the inequity they are facing.

• Managing expectations and reactions: Equipped with the knowledge of equity theory, individuals can better manage their expectations and reactions to unfair treatment. They can recognize that not all situations may be perfectly equitable, and sometimes there are factors beyond their control. This understanding allows them to adapt their mindset and focus on personal growth and resilience.

• Seeking resolution and growth: Understanding equity theory can guide individuals towards seeking resolution rather than dwelling on feelings of unfairness. Understanding the coping mechanisms associated with feelings of unfairness will help individuals find positive ways to address the inequity, which is conducive to personal growth and resilience.

Concerning leaders and supervisors, understanding equity theory is crucial for several reasons.

• Employee Motivation: Equity theory helps leaders understand the impact of fairness on employee motivation. When employees perceive fairness in the distribution of rewards and resources, they are more motivated to perform at their best. By applying equity theory, leaders can create a work environment that fosters motivation and engagement.

• Retention and Engagement: The perception of equity/fairness is closely linked to employee retention and engagement. If employees feel they are treated unfairly, they may become less committed to the organization, disengaged, and consider leaving. By understanding equity theory, leaders can identify and address potential equity issues, ensuring employees feel valued and committed to the organization.

• Team Dynamics: Equity theory has implications for team dynamics and collaboration. When team members perceive fairness in the distribution of rewards and recognition, it promotes trust and cooperation among team members. Leaders can use equity theory to foster a collaborative work environment and strengthen team cohesion.

• Organizational Culture: Equity theory plays a vital role in shaping and sustaining a positive organizational culture.Organizations that prioritize fairness and equity tend to have positive and inclusive cultures.Leaders who understand equity theory can create policies and practices that promote fairness, which will lead to a more harmonious and productive workplace.

• Performance and Productivity: Equity theory directly impacts individual and organizational performance. Employees that feel they are treated fairly are more likely to demonstrate higher satisfaction with their work, resulting in higher levels of productivity and better overall performance. Leaders can leverage equity theory to optimize performance and drive organizational success.

• Conflict Resolution: Equity theory provides insights into resolving conflicts and addressing grievances. By understanding the perceptions of fairness among individuals involved in a conflict, leaders can work towards finding equitable solutions that satisfy the parties involved and restore harmony within the team or organization.

• Decision-Making: Equity theory can guide leaders in making fair and ethical decisions. Leaders who are sensitive to and consider equity principles in decision-making processes, enhance transparency, reduce potential bias, and ensure equitable outcomes.

• Employee Well-being: Fairness is closely linked to employee well-being and satisfaction. Employees who perceive fairness in the workplace experience lower levels of stress and have better mental health. Leaders who embrace equity theory can create a positive work environment that supports employee well-being and contributes to their overall happiness.

Understanding equity theory empowers individuals to make sense of their feelings, evaluate fairness expectations, and take proactive steps to address feelings of unfairness and inequity when they arise. Additionally, understanding equity theory provides a framework for self-reflection, resolution, and personal growth, ultimately leading to improved well-being and satisfaction in the face of unfairness. For leaders, understanding and applying equity theory, will help them create a workplace culture that values fairness, motivates employees, fosters collaboration, and ultimately drives organizational success. Understanding equity theory is a powerful tool that enables leaders to navigate complex dynamics and ensure a harmonious and thriving work environment.

Unlike attorneys, police officers do not have the luxury of sitting in an office mulling over law books to decide how to proceed. Officers often must make split-second decisions; thus, effective police work hinges on the immediate and correct application of search and seizure law. In fact, officers must have a better understanding of the Fourth Amendment, and the judicial system’s (federal and state) interpretation of the Fourth Amendment (based on court decisions) than attorneys. The purpose of this class is to provide officers with up-to-date information concerning search and seizure case law. This class analyzes “real life’’ situations that officers confront daily, explores current and past federal and state court rulings (case law), and discusses the impact these rulings have on how officers perform their duties. The class will provide officers with a clear understanding of what they can and cannot do, with the goal of keeping officers proactive, productive, safe, and out of legal dilemmas.

Register for the class by clicking on “Shop” at the top-right of the website’s homepage. Then, click on the “Practical Search and Seizure” link, then click on “add to cart” and follow the steps.

This episode discusses curtilage and provides federal and Colorado state case law concerning this topic.