Excuses, excuses

When an officer has a hunch someone might be just a bit tipsy behind the wheel and he can't find a legal basis for the stop he tends to fall back on his "community caretaking" function.

Oh, but not so fast.

Back in 2009, two Wiley (Texas) police officers on bike patrol observed a car park on a dead end street behind a fast food restaurant. They watched as the passenger side door opened up. The officers claimed they could hear the passenger and driver talking - but they couldn't make out what they were saying.

The officers decided they had seen enough. It was time to go in for the kill. As they approached, the passenger, Ms. Alford, and the driver switched places. When the officers arrived they saw that the engine was running and the car was in gear. Ms. Alford began to pull away when one of the officers asked her if she would mind answering a couple of questions.

You can guess the rest. The officer smelled a strong odor of an alcoholic beverage and Ms. Alford admitted to drinking "four big beers." Needless to say, the officers testified that Ms. Alford failed their coordination exercises. When asked the basis of the stop, the officers said they believed Ms. Alford was in need of help.

The trial court denied Ms. Alford's motion to suppress on the grounds there was no legal basis for the stop. Oh, that nebulous community caretaking function.

On appeal, in Alford v. State, No. 05-10-00922-CR (Tex.App.--Dallas 2011), the Dallas appeals court found that there was, indeed, no legal basis for the stop. The court pointed out that in order to determine whether the officer's belief that a person needed help, it would weigh four factors:

1. the nature and level of the person's distress;
2. the location of the person;
3. whether the person was alone or had access to help; and
4. to what extent the person was a danger to himself or herself.

In Alford, the court found that none of the factors indicated Ms. Alford needed any help from the officers. Ms. Alford did not appear to be in any distress. The car was parked behind a restaurant that was open. Ms. Alford was in the car with her sister. There was no indication that Ms. Alford was a danger to anyone at the time the officers decided to approach the car.

As a result, the court reversed Ms. Alford's conviction and sent the case back to Collin County to be disposed in a manner consistent with the court's rulings.

What happened to Ms. Alford was not an isolated incident. More and more motorists find themselves being detained without probable cause - and whenever the emperor finds himself naked before the mirror his fallback position is that he thought the motorist was in some sort of danger.

This time, it didn't work.