If the police do a wellness check and find grounds for an arrest in the process, will the warrantless search hold up in court? Our Chicago criminal defense attorneys can assist you if a police welfare check has resulted in an arrest. Call us today at (312) 466-9466 to discuss your case.
Police wellness checks, also referred to as police welfare checks, do not require a search warrant.
As a result, one way the police sometimes get around the Fourth Amendment is by calling their search and seizure of a person a wellness check, or arguing it was part of their community caretaking function, not a criminal investigation.
Sometimes this is true, but often it is a pretext to search someone without a warrant or probable cause.
There are a number of scenarios in which police welfare checks can raise legal issues regarding illegal search and seizure.
As a hypothetical, let's say a family member calls the Chicago police and asks them to do a wellness check on a brother-in-law because they have not heard from him in three weeks. Can the police then go into the house without a search warrant?
Yes. The law states that if a police officer has "reasonable belief" that someone inside a residence is in need of aid, or that there is an imminent threat to the life or welfare of someone inside a residence, the police can make an entry without a warrant. In this scenario, the police officer's community caretaking duties, and emergency aid doctrine, justify a warrantless entry into a home.
What if they walk into the house, find the person to be perfectly healthy, but see a bag of cocaine on a table? Could they then arrest him for drug possession? Alternatively, what if they go into the house, see him healthy, don't see anything in the open but decide to poke around the house, open up a few drawers, and then find a stash of marijuana or an illegal gun? What if they check his background and find outstanding warrants?
This is where the laws regarding police wellness checks get tricky. Every case is unique, so if you or a loved one are in a situation similar to the hypothetical case outlined above, in which an arrest results from a police welfare check, you will need an aggressive criminal defense attorney. You should immediately call our Chicago criminal defense attorneys at (312) 466-9466.
Originally, the Supreme Court of the United States carved out an exception to the warrant requirement of the Fourth Amendment by recognizing the legitimacy of searches and seizures based on community caretaking or public safety considerations. Cady v. Dombrowski, 413 U.S. 433, 441, 37 L. Ed. 2d 706, 714-15,93 S. Ct. 2523, 2528 (1973.
In Cady, the defendant's car was towed to a private lot after a car accident. Because the police had reason to believe that the car contained a gun that might be taken by vandals while the car sat unattended in the lot the Supreme Court held that a search of the car for "the protection of the public" was permissible.
Illinois courts have extended this idea much further, upholding searches of individuals for their own safety. For example, a police officer seized a person who he saw fall out of a tree while holding a beer bottle. The officer testified that it was police department policy to search anyone getting into a police squad car and the man was too drunk to be left alone.
In another case, police arrested a man for drunk driving, and then searched the passengers, who were too drunk to drive as well, before placing them in his squad car. One passenger had a gun and was arrested. The court held that the search was constitutional because defendant was in need of emergency aid because the defendant "found himself on the side of a high-speed tollway at night without a lawful means of reaching safety while in the vulnerable position of being impaired due to his consumption of alcohol." People v. Smith, 346 Ill. App. 3d 146, 803 N.E.2d 1074, 281 Ill. Dec. 453 (2004), aff'd
Police searches have also been upheld when the police respond with paramedics or firemen.
It is possible to fight police searches and seizures based on the claim of a wellness check. One Illinois court has ruled that the community caretaking exception to the Fourth Amendment does not apply if the citizen is detained, but that view seems to be in disfavor with most courts. People v. Laake, 348 Ill. App. 3d 346, 349, 809 N.E.2d 769, 284 Ill. Dec. 203 (2004).
In addition, the facts that the police rely on must establish an emergency situation that jeopardizes someone's safety.
To understand how you can fight an illegal search and seizure call our Illinois criminal defense attorneys for an office consultation today. The phone number for our Chicago criminal defense law firm is (312) 466-9466.