Johnson J., delivered a dissenting opinion in which Price, J. joined.

I respectfully dissent to the majority's decision to remand this cause to the court of appeals. Additionally, I write separately to express my reservations over the majority's interpretation and extension of the Cady⁽¹⁾ community-caretaking function.

I note initially that this Court has not adopted a community-caretaking function under Article I, Section 9 of the Texas Constitution.⁽²⁾ Because the state's petition seeks review only under federal constitutional grounds, it is unnecessary to consider the community-caretaking function as it may apply to the Texas Constitution.

The federal Constitution "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. Thus, this Court is bound, as is any state court, to adhere to and follow the decisions of the Supreme Court to the extent that they set the minimum constitutional standards concerning the Bill of Rights of the federal Constitution, which are applicable to the states through the Fourteenth Amendment. Andrews v. State, 652 S.W.2d 370, 382-83 (Tex.Crim.App. 1983). Accordingly, we are bound by the decision in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), where the U.S. Supreme Court recognized a community-caretaking exception to the warrant requirement of the Fourth Amendment:

Because of the extensive regulation of motor vehicles and traffic, and also because of the frequency with which a vehicle can become disabled or involved in an accident on public highways, the extent of police-citizen contact involving automobiles will be substantially greater than police-citizen contact in a home or office. Some such contacts will occur because the officer may believe the operator has violated a criminal statute, but many more will not be of that nature. Local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability and engage in what, for want of a better term, may be described as community caretaking functions, totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.

Id. at 441, 93 S.Ct. at 2528. I believe, therefore, that a community-caretaking doctrine exists in Texas, but it is the federal doctrine as defined in Cady.

The court of appeals refused to adopt a community-caretaking doctrine without direction from this Court. Wright, 959 S.W.2d 355, 358 (Tex.App.--Austin, pet. granted). The court of appeals also found that, even if it recognized the Cady doctrine, the stop in the instant case was not lawful. Id. Appellant was a passenger, not the driver of the vehicle, and therefore his detention was not lawful under the Cady community-caretaking doctrine. Id. Because the court of appeals correctly decided that issue, a remand to that court, as ordered by the majority, is not necessary.

The majority correctly notes that the search at issue in Cady was not conducted to uncover evidence of criminal activity. Ante, at ___ (slip op. at ___). The warrantless search was conducted to protect the general public. See Cady, 413 U.S. at 443, 93 S.Ct. at 2529. The Supreme Court concluded that because the trunk of the automobile, which the officer reasonably believed contained the driver's service revolver, was vulnerable to intrusion by vandals, the warrantless search was not unreasonable within the meaning of the Fourth Amendment. Id. at 448, 93 S.Ct. at 2531.

It is clear that, in Cady, the search for the defendant's service revolver was "to protect the public from the possibility that a revolver would fall into untrained or perhaps even malicious hands." Id. at 443, 93 S.Ct. at 2529. (Emphasis added.) As the Supreme Court later stated, the justification for the initial intrusion of the vehicle was the "concern for the safety of the general public who might be endangered if an intruder removed a revolver from the trunk of the vehicle." Id. at 447, 93 S.Ct. at 2531. (Emphasis added.) Hence, the Supreme Court repeatedly emphasized that the concern was for the general public, not an individual.

The "community-caretaking function" of police officers, in cases such as this, has its source in the ubiquity of the automobile and the dynamic, differing situations police officers are confronted with in which they must interact with the car and driver to promote public safety. See U.S. v. Rodriguez-Morales, 929 F.2d 780, 785 (1^st Cir.1991), cert. denied, 502 U.S. 1030, 112 S.Ct. 868, 116 L.Ed.2d 774 (1992). (Emphases added.) The state acknowledges that previous Texas cases implicating the community-caretaking function involve situations in which a vehicle is stopped because of a police officer's concern for the welfare of the driver. St. br. at 6.⁽³⁾ The state argues that this distinction is misplaced. The majority holds similarly, finding that the Cady Court drew no distinction in the applicability of the community-caretaking function to stops to determine the welfare of passengers as opposed to that of drivers. Ante, at ___ (slip op. at ___). However, the reason the Supreme Court drew no distinction is because that issue was not presented nor addressed in Cady, nor in any other Supreme Court decision since. See Cady, 413 U.S. 433, 93 S.Ct. 2523.

I find the distinction significant. Unlike a passenger, an unfit driver endangers not only himself, but the public at large. It is this endangerment of the general public that the Cady community-caretaking doctrine sought to curb. In the instant case, it is difficult to imagine how appellant, the passenger leaning out of the right rear passenger window throwing up, was a danger to the general public. Although appellant certainly may have been a danger to himself, he did not constitute a threat to the "safety of the general public." The officer's articulated reasons for stopping and detaining the car in which appellant was a passenger were that "[t]hey could have had a blowout, lost control. He could have been smashed into a pole or something like that. The car could have gone into a ditch, rolled over on top of him, broke his back." Wright, 959 S.W.2d at 357. Given that there was no evidence of reckless driving which was likely to produce the consequences projected by the officer, I agree with the court of appeals that these reasons were unreasonably speculative. Id. Even assuming, arguendo, that the reasons given by the deputy were legitimate, they refer only to the safety of appellant. There appears to have been no testimony that expresses concern for the general public which is the cornerstone of the community-caretaking function promulgated in Cady. I have found no Supreme Court cases citing the Cady community-caretaking doctrine on point with the facts of the instant case. Therefore, little guidance can be found there. There is guidance, however, from a case recently decided by the Idaho Supreme Court, where the defendant was a passenger in an automobile that was detained by police even though the officer observed no violation. State v. Wixom, 947 P.2d 1000 (Idaho S.Ct. 1997).

In a single-car accident just before midnight, Wixom's car struck a mailbox and went through a fence into a field. Id. After a neighbor reported the accident, a responding officer observed the car in the field and determined that it was registered to Wixom's wife. Id. The officer also determined that the car was unoccupied, although he did notice beer, empty beer cans, and an odor of alcohol. Id. The officer found no sign of injury in or around the car. Id. As he was waiting for assistance to investigate the accident, the officer observed a pickup truck approaching. Id. He testified that he observed no traffic violations and that the vehicle was doing nothing suspicious, but may have been traveling more slowly than usual. Id. The deputy stopped the pickup, in which Wixom was a passenger, to ascertain whether the occupants had any information regarding the accident. Id. After questioning him, the deputy arrested Wixom for driving under the influence of alcohol. Id.

Wixom filed a motion to suppress the evidence obtained following the stop of the pickup, contending the stop violated his Fourth Amendment rights. Id. The state argued that the deputy's actions were reasonable as part of his community-caretaking function and the need to locate witnesses to the accident. Id. The district court granted the motion to suppress. Id. On appeal, the state argued that the community-caretaking function applied because of the need to find the possibly injured occupants of the car. Id. at 1002. However, the Idaho Supreme Court agreed with the district court in rejecting the state's argument, finding that the deputy was merely seeking information about the accident and that he did not have a reasonable belief that the pickup occupants could assist him. Id.

The circumstances here are similar to Wixom. Appellant was not driving the car, the car was not being driven recklessly, nor were any traffic violations observed. Wright, 959 S.W.2d at 356, Wixom, 947 P.2d at 1001. Like the officer in Wixom, the officer in the instant case, according to his testimony, did not have a reasonable suspicion that the persons in the car in which appellant was riding were involved in criminal activity. Wright, 959 S.W.2d at 357, Wixom, 947 P.2d at 1002. There is nothing in his testimony to suggest that the well-being of the general public was at risk.

Based on the foregoing, I agree with the court of appeals that detention of appellant was not lawful under the Cady community-caretaking function.

Beyond concluding that the community-caretaking function exists in Texas, the majority, although espousing narrow applicability, extends Cady in ways which appear to have no precedent. Without citation, the majority states that a police officer, as part of his duty to "serve and protect," may stop and assist an individual whom a reasonable person would believe is in need of help. Ante, at ___ (slip op. at ___). First, this is an unwarranted extension of Cady. As noted above, Cady and its progeny focus on the concern for the general public, not the individual. Second, by allowing police officers to detain someone who, in their subjective opinion, is in need of assistance, the majority effectively removes constitutional guarantees which protect individuals from irresponsible or overbearing police intrusion. No longer does an officer need reasonable suspicion to detain a person, only that, in the officer's opinion, that person needs assistance. Finally, assuming, arguendo, that police officers may properly stop and assist an individual in need of help, I disagree with the majority that a "reasonable person" standard be used to determine whether assistance is needed. Consistent with other matters of law enforcement, the appropriate standard should be one of a "reasonable police officer."⁽⁴⁾

The majority, again without citation, announces four factors relevant to the determination of whether an individual needs assistance. Ante, at ___ (slip op. at ___). These factors have not been presented in any previous case in which Cady has been applied.⁽⁵⁾

Although, under Cady, a community-caretaking function exists in Texas, remand is not appropriate, as the court of appeals expressly held that "appellant's detention would not have been lawful even under the Cady 'community caretaking' doctrine." Wright, 959 S.W.2d at 358. I would affirm the judgment of the court of appeals.

I respectfully dissent.

Johnson, J.

Date Delivered: December 15, 1999

En Banc

Publish

1. Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973).

2. This issue was recently presented in Hulit v. State, 982 S.W.2d 431 (Tex.Crim.App. 1998). We found from the totality of the circumstances in Hulit that Article 1, Section 9 of the Texas Constitution had not been violated, but did not rule on the issue of whether there is a community-caretaking exception to the warrant requirement. Hulit, 982 S.W.2d at 438.

3. Citing Hulit v. State, 982 S.W.2d 431; McDonald v. State, 759 S.W.2d 784 (Tex.App.--Fort Worth 1988, no pet.); Cunningham v. State, 966 S.W.2d 811 (Tex.App.--Beaumont 1998); Ortega v. State, 974 S.W.2d 361 (Tex.App.--San Antonio 1998); and Rheinlander v. State, 888 S.W.2d 917 (Tex.App.--Austin 1994), pet. dism'd permanently abated, 918 S.W.2d 527 (Tex.Crim.App. 1996).

4. See, e.g., Crittenden v. State, 899 S.W.2d 668, 681 (Tex.Crim.App. 1995) ("Under the modified objective standard, a reasonable police officer, without a traffic citation book..."); Brimage v. State, 918 S.W.2d 466, 502 (Tex.Crim.App. 1994) ("Taking into account all of the above information, a reasonable police officer could conclude that an emergency existed..."); Davis v. U.S., 512 U.S. 452, 459, 114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994) ("Although a suspect need not 'speak with the discrimination of an Oxford don,' he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.") (internal citation omitted). (Emphases added.)

5. Assuming, arguendo, that the factors are apropos and complete, application of the factors to the instant case further supports the decision of the court of appeals. Appellant was merely vomiting, showing little distress; appellant was safely a passenger in a vehicle; two other people were with appellant in the vehicle, apparently able to assist him; and it was 4:00 a.m. with little traffic, presenting minimal danger to others.