The moment when professional care and concern ends and the suspicion of criminality begins was the crux of the discussion during a motion hearing for Devlin Howard last week in the Fifth Judicial District Court in Jefferson County.
Howard is awaiting trial for assaulting a Boulder police officer and possessing drug paraphernalia during what began as a welfare check on Nov, 28, 2019. Howard pleaded not guilty to the charges, and a trial is currently scheduled for July 22.
Questions raised during the June 10 hearing included Howard’s demeanor after he was unexpectedly awakened, why officers did not immediately verify Howard’s story of waiting on a girlfriend and what prompted the move from a welfare check to a criminal investigation.
Howard’s attorney, Samuel Martin, filed a motion in February asking the court to suppress all evidence in the case, based on the Fourth and Fourteenth Amendments to the U.S. Constitution.
The state, as represented by Chief Deputy County Attorney for Jefferson County Andrew Paul, filed a reply with the court stating that when the defendant was awakened, as part of what began as a welfare check, it was clear he was impaired, which prompted the move to a DUI or drug investigation.
The incident began with a call from a Boulder resident about a man parked on N. Adams Street. It was 3 a.m., six degrees and “blizzardy,” testified Boulder Police Officer Jordan Grimsrud at the June 10 hearing.
Grimsrud testified that it took 35 to 45 seconds of knocking on the driver’s side window with his flashlight to awaken Howard, who appeared to be sleeping in the front seat.
Grimsrud said Howard appeared confused, responded vaguely to a question about his condition, and told Grimsrud and Officer Kyle St. George he was waiting for his girlfriend.
Grimsrud said he asked for Howard’s I.D. but was told he didn’t have it. Grimsrud said he checked on the car with dispatch, and learned that Howard was the owner and that his driver’s license was suspended.
Grimsrud testified Howard’s “lackadaisical” demeanor, the weather, and the potential for a health issue due to the cold prompted him to ask Howard to step out of the car.
“I never touched Mr. Howard,” said Grimsrud.
Martin asked Grimsrud if it’s common for someone who is awakened to be confused and the officer said yes.
When Howard got out of the car, Grimsrud said he saw drug paraphernalia — a “glass bong” — on the console.
When questioned by Martin, Grimsrud said the officers did not verify Howard’s story of waiting on his girlfriend until afterwards. Grimsrud added that they did not initially see anything suspicious, that there was nothing criminal going on, and that he did not observe Howard driving the vehicle.
Court documents filed with the court in December 2019 stated that the officers checked with the individual next door who Howard said he was waiting for. The officers were told that the neighbor did not know what the defendant was doing there, and that the vehicle had been parked for about an hour before they arrived. The next action by the police, as outlined in the court documents, was to run Howard’s information through dispatch.
Martin stated during the hearing that the officers “never checked,” out Howard’s story, but turned it into a criminal investigation.
During the hearing, Martin then asked Grimsrud what it was about Howard’s demeanor that led to the idea he was impaired.
The officer replied that the defendant was lethargic, his eyes were droopy and he was slow to move.
Martin argued that this was a case of the Community Care Doctrine, that is, as long as a person is in need of help, the police have a right to intervene. If a person is in peril, the police can provide relief, said Martin.
However, if the person is not in peril and the scope of the welfare check is expanded to include a criminal investigation, it becomes a seizure issue, said Martin. Martin’s motion to the court to suppress evidence is based on the Fourth and Fourteenth Amendments.
The Fourth Amendment protects against unreasonable searches and seizures, while the Fourteenth Amendment provides that citizens not be denied life, liberty or property without due process of law. The “Community Care Doctrine,” or community care-taking exception, stems from the Fourth Amendment, and which allows for warrantless searches and seizures when they are totally separated from the acquisition of evidence, as ruled in Cady v. Dombrowski before the U.S. Supreme Court in 1973.
Martin argued that Grimsrud was there to do a welfare check, there was no indication that illegal activity had occurred or was about to occur, and there was no reasonable suspicion to investigate further.
Judge Luke Berger said this could be argued both ways, and agreed that this call started as a situation falling under the Community Care Doctrine, but what extended beyond that was the question for the court.
Martin agreed that police have a duty and authority to make a stop, but once they found out Howard was fine, there was no reason to expand the scope of the call — and that provided cause for the case to be dismissed.
Paul argued that there was no reason for Grimsrud to believe that Howard was “truly O.K.” What if Grimsrud left and Howard died of exposure?, asked Paul. There was no reason to think that Howard would take care of himself, Paul said.
Berger agreed that the first part of the call fell under the Community Care Doctrine, but the question is when does that stop, and does it matter that there was no suspicion of additional activity.
Martin argued that the police did not check out Howard’s story of waiting on a girlfriend during that period of time.
The police immediately made this a criminal investigation and stopped seeing if he needed assistance, said Martin.
Paul argued that gathering information and checking identification is an important part of the Community Care Doctrine.
It was after Howard got out of the car that the situation changed, according to court documents.
When Grimsrud began to pat down Howard, the defendant tried to run away, according to court documents filed Dec. 30, 2019.
When the officer “grabbed for” Howard, the defendant turned and hit Grimsrud in the head and face, according to court documents.
Howard then allowed officers to search his car, where they found a glass bong and pipe used to ingest methamphetamine.
Howard was then charged with assaulting a police officer, a felony, as well as possessing drug paraphernalia, a misdemeanor.
Howard remains out on a $50,000 bond. Following the June 10 testimony, Berger said he would allow Martin to file his reply to the state’s reply and then issue a ruling.