How to Get Your Case Dropped Due to an Improper Welfare Check

Were you arrested after the police discovered contraband while checking on your safety?  If so, you may have a basis to have your case dropped.  A case from the First District Court of Appeals shows how this can happen.

In State v. Brumelow, 289 So.3d 955 (Fla. 1st DCA 2019), an officer responding to a 911 call arrived at a bank parking lot around 10:20 a.m. on a Saturday morning.  He observed a male in the driver’s seat and a female in the passenger seat of a running car.  Both occupants appeared to be sleeping.

The officer knocked on the driver’s side window several times.  The male, Michael Jason Brumelow, was awakened and began talking with the officer.  The officer then asked Brumelow to wake up the female in the passenger seat.  Brumelow was unable to do so.

At that point, the officer asked Brumelow to open the window and door and turn off the car, which he did. When the door opened, the officer smelled marijuana.  Brumelow exited the car, while the female passenger remained inside unresponsive.

Fire-rescue personnel arrived soon after the officers.  It took approximately 20-30 minutes to get the female passenger, who was “completely unresponsive”, to become cognizant enough to react by nodding or shaking her head.  A subsequent search led to the discovery of illegal drugs in Brumelow’s pockets and in the car.

Brumelow subsequently sought to suppress evidence of the drugs.  The trial court concluded the officer’s actions in demanding Brumelow to turn off the car and open the window and door violated the limited scope of a “welfare check” as to Brumelow. The trial court reasoned  after the officer succeeded in awakening Brumelow the need for a welfare check had been eliminated. It noted there was no evidence that at the time of the officer’s directive to Brumelow the officer had a reasonable belief that Brumelow or his passenger were either intoxicated or experiencing medical problems.

Indeed, the officer testified that she saw no suspicious or criminal activity. The trial court thereby concluded the officer’s directive to Brumelow to turn off the car and open its window and door elevated the encounter to an investigatory stop without any suspicion that criminal activity had been committed, was being committed, or was about to be committed. For that reason, Brumelow’s motion to suppress the evidence found in the subsequent searches was granted.

The appellate court reversed however.  It initially noted “[a]t issue in this case is whether officers exceeded the scope of a permissible welfare check.”  The court then observed welfare checks fall under the so-called “community caretaking doctrine,” which is a judicial creation that carves out an exception to the Fourth Amendment’s warrant requirement by allowing police officers to engage in a seizure or search of a person or property solely for safety reasons.

The court further noted searches and seizures conducted under the community caretaker doctrine are solely for safety reasons and must be totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.  For this reason, the scope of an encounter is a limited one so that welfare checks don’t become investigative tools that circumvent the constitutional protection against unreasonable searches and seizures.

Finally, the court distinguished “single passenger” cases, because the welfare check involved not only Brumelow’s well-being but that of his female passenger, who was far more difficult to rouse. In doing so, the court found contrary to the trial court’s view, at the time the first officer directed Brumelow to turn off the car and open its window and door, it was unclear why the passenger was non-responsive.

While it may be true no evidence existed that the passenger was intoxicated or experiencing medical problems, it was equally true her physical or medical well-being was both unknown and questionable, according to the court. A reasonable officer could believe that the passenger’s welfare was in doubt and required further inquiry. The first officer, closely followed by a second officer on the scene, were both concerned about the female passenger and unable to communicate with her or get her to respond.

Under these circumstances, where the record showed the car had to be opened without delay to access and attend to the unresponsive female passenger, the smell of marijuana emanating from within the vehicle was unavoidable and the discovery of illegal contraband inevitable. The lawful actions of fire-rescue personnel in opening the car door to attend to the non-responsive passenger made the likelihood of discovery of illegal drugs in Brumelow’s car and possession all but certain. Moreover, the legitimate safety concerns of the officers and fire-rescue personnel, due to the female passenger’s prolonged non-responsiveness were sufficient to prolong the welfare check under the circumstances.

If you were arrested as a result of the police finding contraband during a welfare check, you should consult with a Jacksonville criminal defense lawyer knowledgeable about recent law governing such checks.  Doing so will give you the best chance of having your charges dropped or reduced, on the ground your welfare check subjected you to an illegal warrantless search.  Call me for a free case strategy session to discuss how I can best help you with your welfare check case in Jacksonville, Fernandina Beach, Yulee, Macclenny, Green Cove Springs, Middleburg, St. Augustine or surrounding areas.


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