Some of us remember an era, during our childhood growing up in cities, when much of a police officer's functions involved community caretaking. In the Fifties, before the Brown v. Board of Education decision, most everyone attended a "neighborhood school" within walking distance from his or her home. There was no bussing. We went home for lunch, too. This was not without some danger. But the danger was not of guns and crime. Pupils living some distance from a public school had to cross streets that even in the fifties carried a wide load of traffic.

We can remember a local policeman, assigned to patrol traffic and to see that each child safely crossed to the other side of the highway. He was on duty from 7:45 a.m. until 9:00 a.m. Then he was back on duty during our lunch break from 11:30 a.m. until 1:00 p.m. The last shift of crossings for the day came at 2:50 p.m. Rain or shine, the officer, let's call him Jimmy, was there. And he wore a smile. Often he might have had pocketfuls of bubble gum and miniature Hershey bars for the kids. "How are you today, little one?" he might have asked, a broad grin crossing his ruddy face. Jimmy's eyes would have danced with delight when he spoke to the children, asking questions, making sure everything was okay for them, and listening attentively to those who reached out to him. Parents did not worry about their children on those daily walks home. They rested assured that the community caretaker for the children at the school was on duty. The policeman was a "family" friend.

Those days are long gone. For the most part, city children no longer attend community schools; they are bussed outside their neighborhoods. Policemen like Jimmy have been replaced by crossing guards with little or no authority to intervene on a child's behalf should trouble arise. Call it nostalgia, if you will, but the parents and children were grateful for Jimmy's care giving, and women could go to work every day knowing he was there should we need him.

The following case, State v. Kinzy, 5 P.3d 668 (Wash., 2000), is illustrative of just how much times, values, and parental reactions to police intervention in childrens' misbehavior have changed. The facts were undisputed.

On a school night in March 1998, Seattle Police Officers Jennings and Kim were working as uniformed bicycle patrol officers in a high narcotics area. At 10 P.M. they saw the defendant, Loreal Kinzy, standing on a street corner. She appeared to be no more than 13 years old. Loreal was with two other girls and an older male; the officer recognized the male because of prior narcotics contacts which they had had with the individual.

The officers hailed the young defendant, but she put her head down and began walking away. She was then restrained by the officers and asked her name and age. Although Kinzy told them she was 16 years old, they did not believe her. She appeared nervous and kept sliding her hands into her coat. Ultimately, she was patted down for weapons. Officer Jennings asked her to open her coat, which she did. In the lining he saw white flecks which, from his experience, he suspected to be rock cocaine. The flecks tested positive for cocaine. Kinzy then admitted she had more cocaine concealed in her bra. She was charged with possession of cocaine.

If we return here to the story with which we began about Policeman Jimmy, we know that parents relied upon him to intervene on behalf of their children if there was trouble. And, if a child was wrong, well, he or she had parents and a police officer to answer to. The police officer was held in the same high esteem as the school teacher who meted out punishment fairly regularly in those days. But the kids had more respect for Jimmy. They looked up to him.

Our point here should be clear. Loreal Kinzy's parents should have backed the officers who made the arrest; been grateful they were there to remove her from a cocaine source; and, hard as it might be, should have made her take her punishment. With a bit of good fortune she might never do drugs again. But for unknown reasons, they didn't. The matter went to the King County Superior Court, Juvenile Division. Prior to trial Kinzy filed a motion to suppress evidence of cocaine which the court denied. An appeal to the Court of Appeals was unsuccessful, thus Kinzy appealed to the Supreme Court of Washington.

The only issue before the court is whether one of the exceptions to a warrant requirement applies to the two events occurring prior to the pat-down frisk. Under Terry v. Ohio, the officers need not have a warrant to stop a suspect if they have reasonable, articulable suspicion that criminal activity is afoot. Officer Jennings testified his reason for initiating the encounter with Kinzy was simply concern for her safety, and not suspicion of criminal activity. Since the State cannot make out a case for a valid Terry stop, said the court, it relies on the caretaking function.

The community caretaking function exception recognizes that a person may encounter a police officer in situations involving not only emergency aid, but also involving routine checks on health and safety. However, the emergency aid function involves circumstances of greater urgency and searches resulting in greater intrusion. It applies when (1) the officer subjectively believes that someone needed assistance for health or safety reasons; (2) a reasonable person in the same situation would similarly believe there was need for assistance; and (3) there was a reasonable basis to associate the need for assistance with the place searched. Whether an encounter made for noncriminal, non-investigatory purposes is reasonable depends upon a balancing of the individual's interest in freedom from police interference against the public's interest in having the police perform a community caretaking function. These concepts are fairly simple, but their application may be difficult.

Applying the facts of the instant case, both officers testified that they believed the defendant to be a "youth at risk."" They were in a high crime area, the hour was late, it was a school night, and one of Kinzy's companions was associated with narcotics. However, said the court, the record does not support sufficient justification for detaining Kinzy. She clearly did not welcome the pre-seizure encounter with the police. She started to walk away. At that point the officers did not suspect her of committing a crime, so she should have been allowed to walk away and terminate the encounter. Instead, she was restrained by the officers, and this act raised the encounter to a seizure without a warrant. Kinzy's interest in being free from police intrusion was no longer minimal at that point.

"When the judicial scales are used to balance the governmental interest against a citizen's privacy interest in freedom of association, expression and movement, the balance ought to be struck on the side of privacy because the policy of the Fourth Amendment is to minimize governmental confrontations with an individual" said the court. It therefore concluded that Kinzy's seizure by the officers, and their actions which followed were unreasonable. The State's interest in maintaining safety of children did not outweigh Kinzy's interest in freedom of association, expression and movement.

Judge Talmadge wrote a strong dissenting opinion, expressing his concern that the court's majority was turning every encounter between the police and the public into a latent criminal investigation, thereby doing damage to law enforcement's traditional community caretaking role. According to the majority, said Talmadge, the police cannot detain children at risk, runaways, mentally ill and intoxicated people, and others obviously in distress without a warrant.

Numerous well-respected commentators have written extensively about law enforcement's social responsibilities which are demanded by the communities they serve. The people want police officers to assist at traffic accidents, help the elderly and children cross the streets, aid people in distress, and generally render assistance when needed. The law does not require a warrant for such activities!

This case involved the enforcement of a civil statute in that state: the Family Reconciliation Act, which imposes a duty on law enforcement officers to act, and the officers in this case acted. The statute requires an officer to take a child into custody if he "reasonably believes, considering the child's age, the location, and the time of day, that a child is in circumstances which constitute a danger to the child's safety or that child is violating a local curfew ordinance."

Thus, the dissent states, the officers approached Kinzy because they were concerned she might be in danger. Her slight stature made her look younger than her 16 years. She was in an area known for drug trafficking, in the company of a known drug trafficker! It was in attempting to do what the State required them to do that the police seized Kinzy. We wonder what Officer Jimmy would have thought.

• Courts recognize a police function known as the "community caretaking" function that is totally apart from restrictions imposed by the Fourth Amendment. The function is applied only when an officer reasonably believes someone is in immediate need of assistance for health and safety reasons. Courts have, however, been reluctant to give the community caretaking function a broad scope.