State v. Kenneth M. Asboth, Jr. , 376 Wis. 2d 644 ( 2017 )

2017 WI 76
SUPREME COURT OF WISCONSIN
CASE NO.: 2015AP2052-CR
COMPLETE TITLE:
State of Wisconsin,
Plaintiff-Respondent,
v.
Kenneth M. Asboth, Jr.,
Defendant-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 372 Wis. 2d 185, 888 N.W.2d 23
(2016 – Unpublished)
OPINION FILED: July 6, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 19, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Dodge
JUDGE: John R. Storck
JUSTICES:
CONCURRED:
DISSENTED: A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
J. (opinion filed).
NOT PARTICIPATING:
ATTORNEYS:
For the defendant-appellant-petitioner, there were briefs
by Andrew Hinkel, assistant state public defender, and oral
argument by Andrew Hinkel.
For the plaintiff-respondent, there was a brief by Ryan J.
Walsh, chief deputy solicitor general, with whom on the brief
were Brad D. Schimel, attorney general, and Misha Tseytlin,
solicitor general. Oral argument by Ryan J. Walsh.
2017 WI 76
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2015AP2052-CR
(L.C. No. 2012CF384)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent, FILED
v. JUL 6, 2017
Kenneth M. Asboth, Jr., Diane M. Fremgen
Clerk of Supreme Court
Defendant-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA GRASSL BRADLEY, J. Wisconsin courts have
long applied a community caretaker exception to the warrant
requirement under the Fourth Amendment to the United States
Constitution. In this case, Kenneth M. Asboth, Jr., asks us to
decide whether law enforcement officers' warrantless seizure of
his car was a reasonable exercise of a bona fide community
caretaker function. He also asks us to determine whether
Colorado v. Bertine, 479 U.S. 367 (1987), requires officers to
follow "standard criteria" when conducting a community caretaker
impoundment. We hold that Bertine does not mandate adherence to
standard criteria, and because we further conclude that officers
No. 2015AP2052-CR
reasonably effected a community caretaker impoundment of
Asboth's car, we affirm the decision of the court of appeals.
I. BACKGROUND
¶2 Asboth was a wanted man in November 2012. He was a
suspect in the armed robbery of a Beaver Dam bank, and there was
an outstanding probation warrant for his arrest. When police
received a tip that he was at a storage facility in Dodge
County, outside the City of Beaver Dam, both the Dodge County
Sheriff's Department and Beaver Dam Police responded by sending
officers to the storage facility to apprehend him.
¶3 The sheriff's deputy arrived first and saw a person
matching Asboth's description reaching into the back seat of a
car parked between two storage sheds. Drawing his weapon, the
deputy ordered the person to come out of the vehicle with his
hands up. Asboth, complying with the command, confirmed his
identity after the deputy arrested him. Officers from Beaver
Dam soon arrived at the storage facility, and Asboth was placed
in the back seat of a squad car until they could transport him
for questioning.
¶4 After Asboth's arrest, his car remained parked at the
storage facility. None of the arresting officers asked Asboth
if he could arrange to have the car moved. Although the car sat
in the middle of the alley between two storage sheds, space
remained available for a vehicle to maneuver around it and drive
through the alley. The car, however, entirely blocked access to
one storage unit, and it impeded access to several others. When
the officer ran a check of the car's registration, it identified
2
No. 2015AP2052-CR
the car's owner as not Asboth but a different person with a City
of Madison address.1 Rather than abandoning the car on private
property, or contacting the storage facility's owner about it,
the officers chose to impound the car.
¶5 Both the Beaver Dam Police Department and the Dodge
County Sheriff's Department had policies for officers to follow
when deciding whether to impound a vehicle. The Beaver Dam
policy provided:
Any officer having a vehicle in lawful custody may
impound said vehicle. The officer will have the
option not to impound said vehicle when there is a
reasonable alternative; however, the existence of an
alternative does not preclude the officer's authority
to impound.
The Dodge County policy provided more specific guidance:
Deputies of the Dodge County Sheriff's Department
are authorized to arrange for towing of motor vehicles
under the following circumstances:
When any vehicle has been left unattended upon a
street or highway and is parked illegally in such a
way as to constitute a definite hazard or obstruction
to the normal movement of traffic;
. . . .
When the driver of a vehicle has been taken into
custody by a deputy, and the vehicle would thereby be
left unattended;
. . . .
1
Subsequent investigation revealed that the registered
owner sold the car to Asboth, but neither Asboth nor the former
owner notified the Department of Transportation of the transfer.
Because of this omission, the officers did not know at the time
of the arrest that Asboth actually owned the car.
3
No. 2015AP2052-CR
When removal is necessary in the interest of
public safety because of fire, flood, storm, snow or
other emergency reasons;
. . . .
Unless otherwise indicated, the deputy always has
the discretion to leave the vehicle at the scene and
advise the owner to make proper arrangements for
removal.
¶6 Because the impound lot at the Dodge County Sheriff's
Department was full, the officers and deputies agreed to tow the
car to the Beaver Dam police station. Consistent with police
department procedures, officers conducted an inventory search of
the seized vehicle at the police station. The search turned up
several items that the department held for safekeeping: a video
game system, a cell phone, an MP3 player, keys, and an orange
water bottle containing green leafy material. In the spare tire
compartment beneath a false floor in the trunk, officers also
found a pellet gun, which resembled the handgun used in the
Beaver Dam robbery.
¶7 The State charged Asboth with armed robbery,2 and he
filed a motion to suppress all evidence obtained from the
seizure and search of the car. Asboth's motion initially
challenged the constitutionality of the inventory search itself.
After hearing testimony from four police officers and sheriff's
deputies involved with Asboth's arrest and with the seizure and
search of his car, the Dodge County Circuit Court3 denied
2
See Wis. Stat. § 943.32(1)(b) and (2), § 939.50(3)(c), and
§ 939.62(1)(c) (2015-16).
3
The Honorable John R. Storck, presiding.
4
No. 2015AP2052-CR
Asboth's motion. In its order denying the motion, the circuit
court made findings relevant to the impoundment: "[t]he vehicle
could not be left where it was and needed to be impounded";
"[t]he officers involved believed that the vehicle belonged to
someone other than [Asboth]"; and "[i]t is undisputed that
Beaver Dam police conducted the inventory search according to
established procedures."
¶8 Asboth filed a motion for reconsideration. Relying on
State v. Clark, 2003 WI App 121, 265 Wis. 2d 557, 666
N.W.2d 112, Asboth argued that the officers unconstitutionally
seized the car from the storage facility. Following a hearing
at which Asboth supplemented the record with testimony by more
officers, the circuit court denied the motion and made
additional findings:
(1) Both the Dodge County Sheriff's Department
and the Beaver Dam Police Department's written
policies favor[ed] impoundment . . . .
(2) The vehicle was parked on another
individual's property, not legally parked on a public
street.
(3) The vehicle was blocking access to more than
one of the business's storage lockers and impeding
travel by other customers through the complex.
(4) There were valuable items in the vehicle
including electronics.
(5) Defendant was arrested while in possession of
the vehicle, and was actually observed reaching into
the vehicle.
5
No. 2015AP2052-CR
Asboth pled no contest, and the circuit court imposed sentence
of 10 years initial confinement followed by 10 years extended
supervision.
¶9 In the court of appeals, Asboth challenged the circuit
court's denial of his suppression motion, but he limited his
argument to the constitutionality of the seizure of the car.
State v. Asboth, No. 2015AP2052-CR, unpublished slip op., ¶1
(Wis. Ct. App. Sept. 29, 2016). Specifically, Asboth argued
that the warrantless seizure was unconstitutional because it was
not conducted pursuant to sufficiently detailed standardized
criteria or justified by a bona fide community caretaker
purpose. Id. Assuming without deciding that Bertine requires
law enforcement officers to follow standardized criteria when
seizing a vehicle, the court of appeals concluded that the Dodge
County Sheriff's Department's policy applied and authorized the
seizure. Id., ¶¶11, 20. Turning to Asboth's community
caretaker argument, the court of appeals first rebuffed Asboth's
contention that an investigatory purpose negated the bona fide
community caretaker justification for the seizure, then
concluded that the public need to move the car outweighed
Asboth's privacy interests. Id., ¶¶24, 44. Accordingly, the
court of appeals affirmed the circuit court's denial of the
motion to suppress. Id., ¶45. Asboth petitioned this court for
review, again limiting his argument to the constitutionality of
the seizure, and we granted his petition.
6
No. 2015AP2052-CR
II. STANDARD OF REVIEW
¶10 We review an order granting or denying a motion to
suppress evidence as a question of constitutional fact, which
requires a two-step analysis. State v. Matalonis, 2016 WI 7,
¶28, 366 Wis. 2d 443, 875 N.W.2d 567, cert. denied, 137 S. Ct.
296. "First, we review the circuit court's findings of
historical fact under a deferential standard, upholding them
unless they are clearly erroneous. Second, we independently
apply constitutional principles to those facts." Id. (quoting
State v. Robinson, 2010 WI 80, ¶22, 327 Wis. 2d 302, 786
N.W.2d 463).
III. DISCUSSION
¶11 The Fourth Amendment to the United States Constitution
provides that "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated" and that "no
Warrants shall issue, but upon probable cause." Article I, § 11
of the Wisconsin Constitution likewise provides that "[t]he
right of the people to be secure in their persons, houses,
papers, and effects against unreasonable searches and seizures
shall not be violated" and that "no warrant shall issue but upon
probable cause." Because the Fourth Amendment and Article I,
§ 11 provide substantively identical protections, we have
historically interpreted this section of the Wisconsin
Constitution in accordance with United States Supreme Court
interpretations of the Fourth Amendment. State v. Dumstrey,
7
No. 2015AP2052-CR
2016 WI 3, ¶14, 366 Wis. 2d 64, 873 N.W.2d 502 (citing State v.
Arias, 2008 WI 84, ¶20, 311 Wis. 2d 358, 752 N.W.2d 748).
¶12 "A seizure conducted without a valid warrant is
presumptively unreasonable." State v. Brereton, 2013 WI 17,
¶24, 345 Wis. 2d 563, 826 N.W.2d 369 (citing United States v.
Ross, 456 U.S. 798, 824-25 (1982)). "[B]ecause the ultimate
touchstone of the Fourth Amendment is 'reasonableness,'"
however, "the warrant requirement is subject to certain
exceptions." Brigham City v. Stuart, 547 U.S. 398, 403 (2006).
This court has recognized one such exception where a law
enforcement officer is "serving as a community caretaker to
protect persons and property." State v. Pinkard, 2010 WI 81,
¶14, 327 Wis. 2d 346, 785 N.W.2d 592.
¶13 Specifically, law enforcement officers may conduct a
warrantless seizure without violating the Fourth Amendment when
performing community caretaker functions——those actions "totally
divorced from the detection, investigation, or acquisition of
evidence relating to the violation of a criminal statute."
State v. Kramer, 2009 WI 14, ¶¶19-20, 315 Wis. 2d 414, 759
N.W.2d 598 (quoting Cady v. Dombrowski, 413 U.S. 433, 441
(1973)). When evaluating a claimed community caretaker
justification for a warrantless search or seizure, Wisconsin
courts apply a three-step test, which asks
(1) whether a search or seizure within the meaning of
the Fourth Amendment has occurred; (2) if so, whether
the police were exercising a bona fide community
caretaker function; and (3) if so, whether the public
interest outweighs the intrusion upon the privacy of
8
No. 2015AP2052-CR
the individual such that the community caretaker
function was reasonably exercised . . . .
Matalonis, 366 Wis. 2d 443, ¶31 (quoting Pinkard, 327
Wis. 2d 346, ¶29).
¶14 There is no dispute that a seizure of Asboth's car
occurred within the meaning of the Fourth Amendment, so this
case turns on the second and third steps of Wisconsin's
community caretaker test. Asboth contends that the seizure
satisfied neither the second nor the third steps because an
overriding investigatory purpose negated the officers' bona fide
community caretaker justification for moving the car, and the
public interest in seizing his car did not outweigh his privacy
interest in leaving it at the storage facility. Further, he
insists that the seizure was not reasonable because it was not
governed by standardized criteria sufficient to satisfy Bertine.
We therefore consider in turn the second and third steps of the
community caretaker test.
A. Bona Fide Community Caretaker Function
¶15 The community caretaker exception to the warrant
requirement accounts for the multifaceted nature of police work.
Kramer, 315 Wis. 2d 414, ¶32. As this court has observed,
"Police officers wear many hats: criminal investigator, first
aid provider, social worker, crisis intervener, family
counselor, youth mentor and peacemaker, to name a
few. . . . They are society's problem solvers when no other
solution is apparent or available." Matalonis, 366 Wis. 2d 443,
¶29 (quoting Ortiz v. State, 24 So. 3d 596, 607 n.5 (Fla. Dist.
9
No. 2015AP2052-CR
Ct. App. 2009) (Torpy, J., concurring and concurring
specially)). Although a court assessing whether an officer
acted for a bona fide community caretaker purpose "may consider
[the] officer's subjective intent," this step of the test
ultimately turns on whether the officer can "articulate[] an
objectively reasonable basis" for exercising a community
caretaker function. Pinkard, 327 Wis. 2d 346, ¶31 (quoting
Kramer, 315 Wis. 2d 414, ¶36).
¶16 In South Dakota v. Opperman, 428 U.S. 364 (1976), the
United States Supreme Court noted that "automobiles are
frequently taken into police custody" by officers engaged in
community caretaker functions. Id. at 368. The Court cited two
non-exclusive examples of situations where police officers often
take custody of vehicles: "[v]ehicle accidents," after which
officers take custody of vehicles "[t]o permit the uninterrupted
flow of traffic and in some circumstances to preserve evidence,"
and vehicles that "violate parking ordinances," "thereby
jeopardiz[ing] both the public safety and the efficient movement
of vehicular traffic." Id. at 368-69. In short, "[t]he
authority of police to seize and remove from the streets
vehicles impeding traffic or threatening public safety and
convenience is beyond challenge" in the community caretaker
context. Id. at 369.
¶17 Citing Opperman's subsequent analysis of the
constitutionality of an inventory search, the primary issue in
that case, Asboth asserts that the officers' interest in
investigating him as a potential suspect in the bank robbery
10
No. 2015AP2052-CR
predominated over any bona fide community caretaker function
they performed by moving the car. Furthermore, focusing on
Opperman's examples——impoundment following an accident and
impoundment following a parking ordinance violation——Asboth
argues that the officers here did not have an objectively
reasonable basis to tow his car from the storage facility to the
police station.
¶18 For multiple reasons, we conclude that the officers
possessed a bona fide community caretaker justification for
impounding Asboth's car. First, if left unattended, the car
would have inconvenienced a private property owner and customers
at the storage facility by impeding the beneficial use of the
property. Cf. United States v. Brown, 787 F.2d 929, 932-33 (4th
Cir. 1986) (concluding that officers "could reasonably have
impounded" arrestee's vehicle "because the car could have
constituted a nuisance in the area in which it was parked").
Asboth's car obstructed the alley between the storage sheds,
making it difficult for larger vehicles to pass through. The
car wholly or partially blocked several storage units, limiting
access for customers seeking to access their stored belongings.
Because the car was on a third-party's private property, any
expense for removing the obstruction would have fallen to a
private property owner uninvolved in the arrest. By removing
the car, the officers immediately remedied a potential
disruption created by Asboth's arrest at the private storage
facility, thus limiting the inconvenience to the property owner
and customers.
11
No. 2015AP2052-CR
¶19 Second, because Asboth was a suspect in a crime who
also allegedly violated the terms of his probation, he likely
faced a lengthy detention, and the possibility of a concomitant
lengthy abandonment of the car counseled in favor of its removal
from the premises. See United States v. Coccia, 446 F.3d 233,
240 (1st Cir. 2006) (noting that "officers properly made
arrangements for the safekeeping of the [arrestee's] vehicle"
when they anticipated that he "would be indisposed for an
indeterminate, and potentially lengthy, period"). Impounding
rather than abandoning Asboth's car protected the vehicle and
its contents from potential theft or vandalism in his absence.
See United States v. Kornegay, 885 F.2d 713, 716 (10th Cir.
1989) (citing potential "vandalism or theft" as one factor
supporting impoundment). Indeed, the impoundment's protective
function undermines Asboth's argument that the officers could
have towed the car somewhere other than the police station; his
car likely would have faced greater risk of vandalism or theft
if abandoned in a public place rather than on private property.
Although the later-discovered valuables were not in plain view
at the time the officers towed the vehicle for impoundment,
Asboth no doubt would have been upset to learn that his personal
property was stolen from the car——regardless of whether officers
decided to abandon it at the storage facility or in some other
public place.
¶20 Finally, the registered owner of the car at the time
of Asboth's arrest was someone other than Asboth. With no one
else immediately present claiming ownership or otherwise
12
No. 2015AP2052-CR
available to take possession of the vehicle, the possibility
existed that officers would need to make arrangements to reunite
the car with its registered owner. Moreover, the protective
function of impoundment described above carries no less force
(and perhaps more) for an absent registered owner than it would
if officers knew that Asboth owned the car.
¶21 Collectively, the functions of removing an obstruction
inconveniencing the property's users and protecting an
arrestee's property during his detention, combined with
uncertainty regarding the true ownership of the vehicle,
establish that the officers had a bona fide community caretaker
purpose when impounding Asboth's car. Because we identify these
objective justifications for the impoundment, our cases make
clear that, even if the officers had an additional investigatory
interest in conducting a subsequent inventory search, the
officers' subjective interests do not render the warrantless
seizure of the car unconstitutional. See Kramer, 315
Wis. 2d 414, ¶32 ("[T]he officer may have law enforcement
concerns, even when the officer has an objectively reasonable
basis for performing a community caretaker function.").
Consequently, we now proceed to the third step of the community
caretaker test and assess the reasonableness of the seizure of
Asboth's car.
B. Reasonableness of the Seizure
1. Standard Criteria
¶22 Before we consider the public interest in the
impoundment along with Asboth's competing privacy interest, we
13
No. 2015AP2052-CR
first address Asboth's argument that the seizure of his car was
unreasonable because it was not impounded according to standard
criteria. In particular, he contends that in Bertine the United
States Supreme Court established that an impoundment will be
constitutionally valid only if governed by "standard criteria"
set forth in law enforcement procedures. See Bertine, 479 U.S.
at 375.
¶23 Asboth's argument turns on language at the end of the
Bertine opinion. Although Bertine generally focused on the
constitutionality of an inventory search of Bertine's van, the
Court concluded by addressing Bertine's argument that "the
inventory search of his van was unconstitutional because
departmental regulations gave the police officers discretion to
choose between impounding his van and parking and locking it in
a public parking place." 479 U.S. at 375. Rejecting Bertine's
argument, the Supreme Court explained: "Nothing in Opperman or
[Illinois v. Lafayette, 462 U.S. 640 (1983),] prohibits the
exercise of police discretion so long as that discretion is
exercised according to standard criteria and on the basis of
something other than suspicion of evidence of criminal
activity." Id. (emphasis added).
¶24 A split exists among the federal courts of appeals
regarding Bertine's impact on impoundments by officers
performing community caretaker functions. Several circuits
agree with Asboth, to varying degrees, that law enforcement
officers may constitutionally perform a warrantless community
caretaker impoundment only if standard criteria minimize the
14
No. 2015AP2052-CR
exercise of their discretion. See United States v. Sanders, 796
F.3d 1241, 1248 (10th Cir. 2015) ("[I]mpoundment of a vehicle
located on private property that is neither obstructing traffic
nor creating an imminent threat to public safety is
constitutional only if justified by both a standardized policy
and a reasonable, non-pretextual community-caretaking
rationale."); Miranda v. City of Cornelius, 429 F.3d 858, 866
(9th Cir. 2005) ("The decision to impound must be guided by
conditions which 'circumscribe the discretion of individual
officers' in a way that furthers the caretaking purpose."
(quoting Bertine, 479 U.S. at 376 n.7)); United States v. Petty,
367 F.3d 1009, 1012 (8th Cir. 2004) ("Some degree of
'standardized criteria' or 'established routine' must regulate
these police actions . . . ."); United States v. Duguay, 93 F.3d
346, 351 (7th Cir. 1996) ("Among those criteria which must be
standardized are the circumstances in which a car may be
impounded.").4 Similarly, the District of Columbia Circuit has
4
See also People v. Torres, 116 Cal. Rptr. 3d 48, 56 (Ct.
App. 2010); Patty v. State, 768 So. 2d 1126, 1127 (Fla. Dist.
Ct. App. 2000); State v. Weaver, 900 P.2d 196, 199 (Idaho 1995);
People v. Ferris, 9 N.E.3d 1126, 1137 (Ill. App. Ct. 2014); Fair
v. State, 627 N.E.2d 427, 433 (Ind. 1993); State v. Huisman, 544
N.W.2d 433, 437 (Iowa 1996); State v. Fox, 2017 ME 52, ¶¶23-26,
157 A.3d 778; Commonwealth v. Oliveira, 47 N.E.3d 395, 398
(Mass. 2016); People v. Toohey, 475 N.W.2d 16, 22-23 (Mich.
1991); State v. Robb, 605 N.W.2d 96, 104 (Minn. 2000); State v.
Milliorn, 794 S.W.2d 181, 186 (Mo. 1990) (en banc); People v.
O'Connell, 591 N.Y.S.2d 641, 642 (App. Div. 1992); State v.
O'Neill, 2015-Ohio-815, ¶39, 29 N.E.3d 365 (Ct. App., 3d Dist.);
McGaughey v. State, 2001 OK CR 33, ¶44, 37 P.3d 130.
15
No. 2015AP2052-CR
held that, "if a standard impoundment procedure exists, a police
officer's failure to adhere thereto is unreasonable and violates
the Fourth Amendment." United States v. Proctor, 489 F.3d 1348,
1349 (D.C. Cir. 2007).
¶25 In contrast, three federal circuits do not afford
dispositive weight to the existence of standardized criteria or
to law enforcement officers' adherence thereto, instead treating
such criteria as, at most, one factor to consider when assessing
the Fourth Amendment reasonableness of a warrantless community
caretaker impoundment.5 The Fifth Circuit flatly rejects any
need to consider standardized criteria as part of a
reasonableness analysis. See United States v. McKinnon, 681
F.3d 203, 208 (5th Cir. 2012) ("Since Opperman and Bertine, we
have focused our inquiry on the reasonableness of the vehicle
impoundment for a community caretaking purpose without reference
to any standardized criteria."). The Third Circuit has
expressly recognized that a law enforcement officer's "decision
to impound a vehicle contrary to standardized procedures or even
in the absence of a standardized procedure should not be a per
se violation of the Fourth Amendment." United States v. Smith,
522 F.3d 305, 312 (3d Cir. 2008).
¶26 Most persuasively, the First Circuit explained in
United States v. Coccia, 446 F.3d 233 (1st Cir. 2006), its
5
See also People v. Shafrir, 107 Cal. Rptr. 3d 721, 721-28
(Ct. App. 2010); Cannon v. State, 601 So. 2d 1112, 1115-16 (Ala.
Crim. App. 1992).
16
No. 2015AP2052-CR
reasons for "read[ing] Bertine to indicate that an impoundment
decision made pursuant to standardized procedures will most
likely, although not necessarily always, satisfy the Fourth
Amendment." Id. at 238. After noting the established principle
that "impoundments of vehicles for community caretaking purposes
are consonant with the Fourth Amendment so long as the
impoundment decision was reasonable under the circumstances,"
the court added that Fourth Amendment "reasonableness analysis
does not hinge solely on any particular factor." Id. at 239.
Like any other factor, standard criteria do not provide "the
sine qua non of a reasonable impound decision":
Virtually by definition, the need for police to
function as community caretakers arises fortuitously,
when unexpected circumstances present some transient
hazard which must be dealt with on the spot. The
police cannot sensibly be expected to have developed,
in advance, standard protocols running the entire
gamut of possible eventualities. Rather, they must be
free to follow "sound police procedure," that is to
choose freely among the available options, so long as
the option chosen is within the universe of reasonable
choices. Where . . . the police have solid, non-
investigatory reasons for impounding a car, there is
no need for them to show that they followed explicit
criteria in deciding to impound, as long as the
decision was reasonable.
Id. (quoting United States v. Rodriguez-Morales, 929 F.2d 780,
787 (1st Cir. 1991)). The First Circuit then proceeded to
assess the reasonableness of the challenged impoundment. Id. at
239-41.
¶27 We agree with the First, Third, and Fifth Circuits
that in cases involving warrantless community caretaker
impoundments the fundamental question is the reasonableness of
17
No. 2015AP2052-CR
the seizure. Accordingly, we hold that the absence of standard
criteria does not by default render a warrantless community
caretaker impoundment unconstitutional under the Fourth
Amendment reasonableness standard. Nor does law enforcement
officers' lack of adherence to standard criteria, if they exist,
automatically render such impoundments unconstitutional.
¶28 The absence of a standard criteria requirement does
not, as Asboth suggests, imbue law enforcement officers with
"uncontrolled" discretion to impound vehicles at will as a
pretext for conducting investigatory inventory searches. As the
First Circuit observed in Coccia, under the reasonableness
standard, "a police officer's discretion to impound a car is
sufficiently cabined by the requirement that the decision to
impound be based, at least in part, on a reasonable community
caretaking concern and not exclusively on 'the suspicion of
criminal activity.'" Coccia, 446 F.3d at 239 (quoting Bertine,
479 U.S. at 375). The second step of Wisconsin's community
caretaker test requires law enforcement officers to establish
that the warrantless impoundment occurred pursuant to a bona
fide community caretaker purpose. Far from leaving officers
with unlimited discretion to impound, Wisconsin's test
authorizes law enforcement officers to conduct such warrantless
seizures only if they have "an objectively reasonable basis for
performing a community caretaker function." Kramer, 315
Wis. 2d 414, ¶32.
¶29 Finally, our conclusion that Bertine does not mandate
adoption of or adherence to standard impoundment criteria for
18
No. 2015AP2052-CR
all circumstances should not discourage law enforcement agencies
from developing general impoundment procedures. "[A]doption of
a standardized impoundment procedure . . . supplies a
methodology by which reasonableness can be judged and tends to
ensure that the police will not make arbitrary decisions in
determining which vehicles to impound." Smith, 522 F.3d at 312.
Indeed, adherence to sufficiently detailed standard criteria can
enhance the reasonableness of an impoundment by limiting the
exercise of discretion and encouraging compliant officers to
identify and pursue the least-intrusive means of performing the
community caretaker function. See United States v. Sharpe, 470
U.S. 675, 687 (1985) (noting that courts assessing law
enforcement officers' actions must ask "not simply whether some
other alternative was available, but whether the police acted
unreasonably in failing to recognize or to pursue it"). As we
discuss further below, a Wisconsin court may consider the
existence of, and officers' adherence to, standard criteria as a
relevant factor when assessing the reasonableness of a community
caretaker seizure.6
6
Although in this case we discuss the standard impoundment
criteria while assessing the reasonableness of the seizure,
nothing in this opinion forecloses Wisconsin courts from
considering officers' adherence to standard criteria when
determining whether officers exercised a bona fide community
caretaker function.
19
No. 2015AP2052-CR
2. Reasonableness Inquiry
¶30 Under the third step of Wisconsin's community
caretaker test, we evaluate the reasonableness of the law
enforcement officer's exercise of a bona fide community
caretaker function by "balancing [the] public interest or need
that is furthered by the officer's conduct against the degree of
and nature of the restriction upon the liberty interest of the
citizen." Kramer, 315 Wis. 2d 414, ¶40. We generally consider
four factors:
(1) the degree of the public interest and the exigency
of the situation; (2) the attendant circumstances
surrounding the seizure, including time, location, the
degree of overt authority and force displayed; (3)
whether an automobile is involved; and (4) the
availability, feasibility and effectiveness of
alternatives to the type of intrusion actually
accomplished.
Id., ¶41 (quoting State v. Kelsey C.R., 2001 WI 54, ¶36, 243
Wis. 2d 422, 626 N.W.2d 777).
¶31 Taking the third factor first, we note that evaluation
of a car's impoundment necessarily involves an automobile. This
factor enters the analysis because "[i]n some situations a
citizen has a lesser expectation of privacy in an automobile."
State v. Anderson, 142 Wis. 2d 162, 169 n.4, 417 N.W.2d 411 (Ct.
App. 1987) (citing New York v. Class, 475 U.S. 106, 112-13
(1986)). Although many of our recent community caretaker cases
have raised questions regarding the appropriate scope of
warrantless searches of homes, see, e.g., Matalonis, 366
Wis. 2d 443, ¶2; Pinkard, 327 Wis. 2d 346, ¶1, this case
20
No. 2015AP2052-CR
involved Asboth's lesser privacy interest in his car.
Therefore, law enforcement officers impounding a vehicle as
community caretakers need not demonstrate the same extraordinary
public interest necessary to justify a warrantless community
caretaker entry into the home. See Pinkard, 327 Wis. 2d 346,
¶56 (observing that, as compared to an automobile, "one has a
heightened privacy interest in preventing intrusions into one's
home").
¶32 Turning to the public interest advanced by the
impoundment, we circle back to the effect of Asboth's arrest on
the storage facility's owner and customers: The public has a
significant interest in law enforcement officers seizing from
private property a vehicle that, if left unattended, would
inconvenience the property's owner and users by impeding
beneficial use of the property and creating a potential hazard——
particularly when the officers are in lawful custody of the car.
See Brown, 787 F.2d 929, 932-33. One of this court's decisions
approving limited warrantless home entry by officers performing
a community caretaker function specifically contemplates the
possibility of officers acting for the similar purpose of
abating a nuisance. See Pinkard, 327 Wis. 2d 346, ¶20 n.6
(quoting with approval United States v. Rohrig, 98 F.3d 1506,
1522-23 (6th Cir. 1996), which held that "officers' 'failure to
obtain a warrant [did] not render that entry unlawful' where
officers entered defendant's home to 'abat[e] an ongoing
nuisance by quelling loud and disruptive noise'" (alterations in
original)). Although we reserve judgment on such a home-entry
21
No. 2015AP2052-CR
question for a future case, we do not hesitate to recognize
that, even in the absence of the exigencies that often accompany
community caretaker actions, the law enforcement officers here
served a legitimate public interest by impounding an unattended
vehicle that inconvenienced a private business and its customers
and created a hazard by obstructing vehicle traffic through the
storage facility.
¶33 The circumstances surrounding the impoundment also
reflect the seizure's reasonableness. If abandoned by the
officers, the car would have intruded on private property owned
by a third party who had nothing to do with the arrest. And
because Asboth was already under arrest at the time of the
impoundment, officers did not make an improperly coercive show
of authority to effect the seizure. See Kramer, 315
Wis. 2d 414, ¶43. To the contrary, the seizure actually
complied with the terms of both the Beaver Dam and the Dodge
County procedures governing impoundments.7 The Beaver Dam policy
permitted officers to impound a vehicle held "in lawful
custody," and the officers took possession of the car after
lawfully arresting Asboth. Additionally, the policy permitted
officers to decide against impoundment if a "reasonable
alternative" existed, but there was no sensible alternative
available here. Providing more targeted guidance, the Dodge
7
Because we conclude that the seizure complied with both
departments' impoundment procedures, we need not decide which
procedures actually governed.
22
No. 2015AP2052-CR
County policy authorized deputies to tow a vehicle "[w]hen the
driver of a vehicle has been taken into custody by a deputy, and
the vehicle would thereby be left unattended." Again, officers
lawfully arrested Asboth, and it was reasonable under the
circumstances to infer that the person alone with the vehicle at
the storage facility was its driver. The fact that the seizure
did actually comply with the policies of the acting law
enforcement agencies indicates that this impoundment was not an
arbitrary decision but a reasonable exercise of discretion. See
Smith, 522 F.3d at 312.
¶34 Notably, the fact that both policies actually cabined
the officers' exercise of discretion also indicates that the
officers acted reasonably when seizing Asboth's car. In Clark,
the court of appeals disapproved of a policy permitting officers
to tow a vehicle if "[the] vehicle is to be towed and the
owner/driver is unable to authorize a tow." 265 Wis. 2d 557,
¶6. The court of appeals recognized that this policy was
"wholly unhelpful" because it "offer[ed] no insight into why or
when a vehicle may be seized," instead essentially "stat[ing]
that 'a vehicle is to be towed for safekeeping when a vehicle is
to be towed.'" Id., ¶15. Here, the Beaver Dam and Dodge County
policies avoided such circular reasoning by limiting impoundment
to situations where officers had custody of, respectively, the
vehicle itself or its driver. Rather than allowing officers to
impound a vehicle at will any time the vehicle's driver was
unavailable, as the policy in Clark authorized, both policies in
this case permitted impoundment only as a natural consequence of
23
No. 2015AP2052-CR
law enforcement action that would otherwise result in the
vehicle's abandonment.
¶35 Finally, the lack of realistic alternatives to
impoundment further reinforces the reasonableness of the
seizure. Asboth was alone at the storage facility, so he did
not have a companion who could immediately take possession of
the car. Admittedly, the officers did not offer Asboth the
opportunity to make arrangements for moving his car after his
arrest, but nothing required them to do so. See United States
v. Arrocha, 713 F.3d 1159, 1164 (8th Cir. 2013) ("Nothing in the
Fourth Amendment requires a police department to allow an
arrested person to arrange for another person to pick up his car
to avoid impoundment and inventory." (quoting United States v.
Agofsky, 20 F.3d 866, 873 (8th Cir. 1994), which cited Bertine,
479 U.S. at 372)); see also Rodriguez-Morales, 929 F.2d at 786.
In fact, given the uncertainty arising from the fact that Asboth
was not the car's registered owner, taking possession of the car
to investigate its ownership may have been more reasonable than
outright returning the car to Asboth.8
8
The clear absence of feasible alternatives to impounding
Asboth's car further distinguishes this case from State v.
Clark, 2003 WI App 121, 265 Wis. 2d 557, 666 N.W.2d 112, in
which the court of appeals also held that the public interest in
towing an unlocked vehicle from the Milwaukee streets did not
outweigh the intrusion into the owner's privacy. Id., ¶27. An
officer investigating shots fired in the area ordered the
legally parked but unlocked vehicle towed "to ensure that the
vehicle itself and any property inside the vehicle would not be
stolen." Id., ¶23. The court of appeals held that the
community caretaker exception did not apply because the officer
could have "(1) locked the vehicle and walked away; [or] (2)
(continued)
24
No. 2015AP2052-CR
¶36 Considering all of these factors together, we conclude
that law enforcement's removal of an unattended car that would
otherwise create a potential hazard while also inconveniencing
owners and users of private property9 outweighed Asboth's lesser
privacy interest in that car. Because the officers advanced
that public interest in pursuit of a bona fide community
caretaker function, we hold that the warrantless seizure of
Asboth's car after his arrest was constitutionally reasonable
under the Fourth Amendment.
IV. CONCLUSION
¶37 "The touchstone of the Fourth Amendment is
reasonableness." State v. Tullberg, 2014 WI 134, ¶29, 359
Wis. 2d 421, 857 N.W.2d 120 (quoting Florida v. Jimeno, 500 U.S.
248, 250 (1991)). Applying Wisconsin's test for the community
caretaker exception to the Fourth Amendment's warrant
requirement, we conclude that law enforcement officers acted
attempted to contact the owners of the vehicle in light of his
belief that the vehicle or its contents may be stolen." Id.,
¶27.
9
The array of factors demonstrating the reasonableness of
the officers' decision to impound Asboth's car defeats any
argument that this opinion delineates a per se rule
"justify[ing] the seizure of every vehicle after its driver has
been arrested." Dissent, ¶76. As with any warrantless
community caretaker search or seizure, law enforcement officers
acting as bona fide community caretakers may impound an arrested
person's vehicle without a warrant only if the facts establish a
countervailing public interest in conducting the seizure that
outweighs any infringement on the arrested person's liberty
interest.
25
No. 2015AP2052-CR
reasonably when seizing Asboth's vehicle for impoundment.
Although we conclude that the officers here complied with both
relevant departmental impoundment policies, we also hold that
Bertine does not mandate such adherence to satisfy the Fourth
Amendment's reasonableness standard. Accordingly, we affirm the
decision of the court of appeals.
By the Court.——The decision of the court of appeals is
affirmed.
26
No. 2015AP2052-CR.awb
¶38 ANN WALSH BRADLEY, J. (dissenting). The majority
bucks the nationwide trend when it determines that the Fourth
Amendment to the United States Constitution does not require
that police follow standardized procedures during a community
caretaker impoundment. Adopting the minority rule followed by
three federal circuits, it reasons that standardized procedures
are unnecessary because police discretion is sufficiently
limited by the requirement that impoundments be based on a
reasonable community caretaker concern.
¶39 Compounding its misdirection, the majority further
errs by expanding an already bloated community caretaker
exception to the Fourth Amendment's warrant requirement. It
appears that yet again this court's "expansive conception of
community caretaking transforms [it] from a narrow exception
into a powerful investigatory tool." State v. Matalonis, 2016
WI 7, ¶106, 366 Wis. 2d 443, 875 N.W.2d 567 (Prosser, J.,
dissenting).
¶40 Contrary to the majority, I would follow the national
trend as illustrated by the well-reasoned approach of the Tenth
Circuit in U.S. v. Sanders, 796 F.3d 1241 (2015). It determined
that "impoundment of a vehicle located on private property that
is neither obstructing traffic nor creating an imminent threat
to public safety is constitutional only if justified by both a
standardized policy and a reasonable, non-pretextual community-
caretaking rationale." Sanders, 796 F.3d at 1248.
¶41 Applying the Sanders test, I conclude that the
warrantless impoundment of Asboth's vehicle violated his Fourth
1
No. 2015AP2052-CR.awb
Amendment rights. His vehicle neither obstructed traffic nor
created an imminent threat to public safety. Additionally, the
standardized policies here fail to place any meaningful limits
on police discretion and the asserted rationale for the
community caretaker impoundment is unreasonable.
¶42 Accordingly, I respectfully dissent.
I
¶43 The Fourth Amendment to the United States Constitution
provides that "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause. . . ." Community
caretaker impoundments are an exception to the Fourth
Amendment's warrant requirement. State v. Pinkard, 2010 WI 81,
¶14, 327 Wis. 2d 346, 785 N.W.2d 592. Given the importance of
the privacy interests involved, this exception should be
narrowly construed. See Arizona v. Gant, 556 U.S. 332, 345
(2009) (instructing that a motorist's privacy interest in his
vehicle is "important and deserving of constitutional
protection.").
¶44 In Gant, the United States Supreme Court expanded
motorists' privacy rights when it narrowed its prior decision in
New York v. Belton, 453 U.S. 454 (1981). Belton had previously
been read so broadly as to authorize a vehicle search incident
to every arrest of any occupant of a vehicle. See Gant, 556
U.S. at 343.
2
No. 2015AP2052-CR.awb
¶45 The Gant court explained that "[c]onstruing Belton
broadly to allow vehicle searches incident to any arrest would
serve no purpose except to provide a police entitlement, and it
is anathema to the Fourth Amendment to permit a warrantless
search on that basis." Id. at 347. Accordingly, Gant limited
searches incident to arrest to two circumstances: either when
the arrestee is unsecured and within reaching distance of the
passenger compartment at the time of the search or when it is
reasonable to believe that evidence relevant to the crime of
arrest might be found in the vehicle. Id. at 343.
¶46 In order to address the same concerns in the context
of vehicle impoundments, the national trend has been to adopt a
two-part test that resembles Gant's narrowing of Belton. This
test, like the test adopted in Gant, prioritizes motorists'
privacy rights over deference to police discretion. It limits
police discretion regarding impoundments by requiring both a
standardized policy governing impoundment and a "reasonable,
non-pretextual community-caretaking rationale." Sanders, 796
F.3d at 1248.
¶47 The question of whether a community caretaker
impoundment of a vehicle must be governed by a standardized
policy is an issue of first impression in Wisconsin. However,
the United States Supreme Court has instructed that the exercise
of police discretion must be "exercised according to standard
criteria and on the basis of something other than suspicion of
evidence of criminal activity." Colorado v. Bertine, 479
U.S. 367, 375 (1987).
3
No. 2015AP2052-CR.awb
¶48 A majority of federal and state appellate courts that
have addressed this issue have concluded that a warrantless
community caretaker impoundment is constitutional only if there
exists standardized criteria limiting police discretion. See,
e.g., United States v. Sanders, 796 F.3d 1241, 1248 (10th Cir.
2015); United States v. Proctor, 489 F.3d 1348, 1353-54 (D.C.
Cir. 2007); Miranda v. City of Cornelius, 429 F.3d 858, 866 (9th
Cir. 2005); United State v. Petty, 367 F.3d 1009, 2012 (8th Cir.
2004); United States v. Duguay, 93 F.3d 346, 351 (7th Cir.
1996); Patty v. State, 768 So. 2d 1126, 1127 (Fla. Dist. Ct.
App. 2000); State v. Weaver, 900 P.2d 196, 199 (Idaho 1995);
People v. Ferris, 9 N.E.3d 1126, 1137 (Ill. Ct. App. 2014); Fair
v. State, 627 N.E.2d 427, 433 (Ind. 1993); State v. Huisman, 544
N.W.2d 433, 437 (Iowa 1996); Com. v. Oliveira, 47 N.E.3d 395,
398 (Mass. 2016); State v. Robb, 605 N.W.2d 96, 104 (Minn.
2000); State v. Milliorn, 794 S.W.2d 181, 186 (Mo. 1990); State
v. Filkin, 494 N.W.2d 544, 549 (Neb. 1993); People v. O'Connell,
188 A.D.2d 902, 903 (N.Y. App. Div. 1992); State v. O'Neill, 29
N.E.3d 365, 374 (Ohio Ct. App. 2015); McGaughey v. State, 37
P.3d 130, 142–43 (Okla. Crim. App. 2001).
¶49 Yet, the majority follows the minority view of three
federal circuits, determining that in cases involving
warrantless community caretaker impoundments that standardized
policies are not necessary. United States v. McKinnon, 681
F.3d 203, 208 (5th Cir. 2012); United States v. Smith, 522 F.3d
305, 312 (3d Cir. 2008); United States v. Coccia, 446 F.3d 233,
238 (1st Cir. 2006). It reasons that standardized procedures
4
No. 2015AP2052-CR.awb
are unnecessary because police discretion is sufficiently
limited by the requirement that impoundments be based on a
reasonable community caretaker concern.
¶50 According to the majority, "the fundamental question
is the reasonableness of the seizure." Majority op., ¶27. It
contends that the absence of standard criteria does not "imbue
law enforcement officers with 'uncontrolled' discretion to
impound vehicles at will as a pretext for conducting
investigatory searches." Majority op., ¶28. However, as set
forth in more detail below, that is exactly what happened here.
¶51 The Tenth Circuit's decision in Sanders is
illustrative of the national trend. In Sanders, for "reasons
not articulated in any policy, [police] impounded a vehicle
lawfully parked in a private lot after arresting its driver as
she exited a store." Id. at 1242. The police made "no
meaningful attempt to allow the driver, her companion, or the
owner of the parking lot to make alternative arrangements." Id.
¶52 Sanders acknowledged that "[t]he authority of police
to seize and remove from the streets vehicles impeding traffic
or threatening public safety and convenience is beyond
challenge." Id. at 1244 (quoting South Dakota v. Opperman, 428
U.S. 364, 368-69 (1976)). It further explained that Opperman
and Bertine establish "two different, but not inconsistent,
rules regarding when impoundments are constitutional." Id. at
1245. Opperman establishes that warrantless impoundments
required by the community caretaking functions of protecting
public safety and promoting the efficient movement of traffic
5
No. 2015AP2052-CR.awb
are constitutional. Id. Bertine establishes that warrantless
impoundments are unconstitutional if justified by either a
"pretext for a criminal investigation or not exercised according
to standardized criteria" that limits police discretion. Id.
¶53 After surveying United States Supreme Court and
federal circuit precedent, Sanders concluded that "impoundment
of a vehicle located on private property that is neither
obstructing traffic nor creating an imminent threat to public
safety is constitutional only if justified by both a
standardized policy and a reasonable, non-pretextual community-
caretaking rationale." Id. at 1248.
¶54 Deviating from the nationwide trend, the majority
limits motorists' privacy rights. Contrary to the majority, I
would follow the national trend protecting motorists' privacy
rights under the Fourth Amendment and require both a
standardized policy that limits police discretion and a
reasonable community caretaker rationale.
A
¶55 Applying the test set forth above, I turn to the
question of whether the policies in this case sufficiently
limited officer discretion to impound vehicles from private
lots.1
1
The parties disagree regarding which policy governed the
impoundment, but as set forth below, this issue is not
dispositive to my analysis because neither policy sufficiently
limits police discretion.
6
No. 2015AP2052-CR.awb
¶56 The Beaver Dam Police Department policy provides no
limitations. In essence, it states that any officer having a
vehicle in lawful custody may impound that vehicle:
Any officer having a vehicle in lawful custody may
impound said vehicle. The officer will have the
option not to impound said vehicle when there is a
reasonable alternative; however, the existence of an
alternative does not preclude the officer's authority
to impound.
¶57 Likewise, the Dodge County Sheriff's Department policy
governing impoundment provides that deputies are authorized to
tow when "the driver . . . has been taken into custody by a
deputy, and the vehicle would thereby be left unattended."
Additionally, it states that unless otherwise indicated, "the
deputy always has the discretion to leave the vehicle at the
scene and advise the owner to make proper arrangements for
removal."2
2
The sheriff's department policy states in relevant part:
Deputies of the Dodge County Sheriff's Department are
authorized to arrange for towing of motor vehicles
under the following circumstances:
When any vehicle has been left unattended upon a
street or highway and is parked illegally in such a
way as to constitute a definite hazard or obstruction
to the normal movement of traffic;
. . .
When the driver of a vehicle has been taken into
custody by a deputy, and the vehicle would thereby be
left unattended;
. . .
(continued)
7
No. 2015AP2052-CR.awb
¶58 Having determined that standardized policies are not
constitutionally required, the majority nevertheless considers
the policies in the context of whether the seizure was
reasonable.
¶59 According to the majority, both policies cabined the
officers' discretion because they limit impoundment "to
situations where officers had custody of, respectively, the
vehicle itself or its driver." Majority op., ¶34. After
concluding that the standardized policies in this case are
sufficient, the majority determines that "[t]he fact that the
seizure did actually comply with the policies of the acting law
enforcement agencies indicates that this impoundment was not an
arbitrary decision but a reasonable exercise of discretion."
Majority op., ¶33.
¶60 The majority errs because neither policy limits police
discretion. First, it is unclear how the Beaver Dam policy,
which allows impoundments whenever officers have custody of a
vehicle, provides any limitation at all. How can the police
impound a vehicle without having custody of it? The policy's
directive is circular.
When removal is necessary in the interest of public
safety because of fire, flood, storm, snow or other
emergency reasons;
. . .
Unless otherwise indicated, the deputy always has the
discretion to leave the vehicle at the scene and
advise the owner to make proper arrangement for
removal.
8
No. 2015AP2052-CR.awb
¶61 Second, the majority errs because the Dodge County
policy limits police discretion only when a driver is not in
custody. The Fourth Amendment's protections against warrantless
seizures of property continue to apply after a driver has been
arrested. Indeed, the question of whether standardized
procedures are required has arisen in such seminal cases as
Bertine only after the defendant has been arrested. See, e.g.,
Bertine, 479 U.S. at 368-369.
¶62 The majority misses the point because the question in
this case is whether the policies limit police discretion in
determining whether to impound a vehicle after a defendant has
been arrested. Both policies give the police unfettered
discretion to impound a vehicle when a driver such as Asboth has
been arrested.
¶63 The purpose of standardized criteria is to establish
why or when a vehicle may be taken into custody, but here
neither policy offers any guidance on this question. In State
v. Clark, the court of appeals addressed the Milwaukee Police
Department towing policy, explaining that when a policy offers
no insight into why or when a vehicle may be seized, it is
"wholly unhelpful." 2003 WI App 121, ¶15, 265 Wis. 2d 557, 666
N.W.2d 112.
¶64 Neither policy limits officer discretion "in deciding
whether to impound a vehicle, leave it at the scene, or allow
the arrestee to have it privately towed." Sanders, 796 F.3d at
1250. In contrast, the policy in Bertine "related to the
feasibility and appropriateness of parking and locking a vehicle
9
No. 2015AP2052-CR.awb
rather than impounding it." Bertine, 479 U.S. at 378. No such
detail governs officer discretion here.
¶65 Accordingly, the policies in this case, as in Sanders,
"insufficiently limited officer discretion to impound vehicles
from private lots." Sanders, 796 F.3d at 1250.
B
¶66 Having determined that the impoundment was not done in
accordance with constitutionally sufficient standardized
policies, I could end my analysis here because a community
caretaker impoundment is unconstitutional without standardized
procures that limit police discretion. The majority, however,
concludes that the police reasonably effected a community
caretaker impoundment of Asboth's car. Majority op., ¶1.
Accordingly, I turn now to the question of whether the police
conduct in this case was a valid exercise of the community
caretaker authority.
¶67 The majority concludes that there are a number of
"objective justifications for the impoundment" that establish
the police had a bona fide community caretaker purpose.
Majority op., ¶21. Initially, it contends that if left
unattended, Asboth's car would have "inconvenienced a private
property owner and customers at the storage facility by impeding
the beneficial use of the property." Majority op., ¶18. Yet,
the hearing testimony demonstrates that it was possible to
"drive around" Asboth's vehicle, contradicting this rationale.
Beneficial use of the property was not impeded because Asboth's
vehicle was not blocking traffic through the storage facility.
10
No. 2015AP2052-CR.awb
¶68 Because of the lack of evidence that the vehicle was
obstructing traffic at the storage facility, the majority offers
a number of additional rationalizations. First, it advances
that "any expense for removing the obstruction would have fallen
to a private property owner uninvolved in the arrest." Majority
op., ¶18. Next, it asserts that the police protected the
vehicle and its contents from theft and that "Asboth no doubt
would have been upset to learn that his personal property was
stolen from the car." Majority op., ¶19. Finally, it contends
that because the registered owner of the vehicle was someone
other than Asboth, police were faced with the possibility of
needing to make arrangements to return the vehicle to its
registered owner. Majority op., ¶20.
¶69 The hearing testimony demonstrates that each of these
proffered rationales is purely speculative. None of the
officers contacted the storage facility to see whether the owner
wanted the car removed nor did they contact the registered owner
of the vehicle. Additionally, none of the officers recalls
speaking with Asboth about whether he could arrange to have
someone move the vehicle.
¶70 After dispensing with the majority's speculative
justifications for its conclusion that this was a bona fide
community caretaker function, I turn now to examine the
reasonableness of the warrantless impoundment. A reasonableness
analysis calls for consideration of both "the degree of public
interest and the exigency of the situation." State v. Pinkard,
11
No. 2015AP2052-CR.awb
2010 WI 81, ¶41, 327 Wis. 2d 346, 785 N.W.2d 592 (quoting In re
Kelsey C.R., 2001 WI 54, ¶36, 243 Wis. 2d 422, 626 N.W.2d 777).
¶71 In its analysis of reasonableness, the majority
repeats the same justifications offered as support for its
conclusion that the impoundment was a bona fide community
caretaker function. Essentially, it contends that the public
has a significant interest in impounding a vehicle that would
"inconvenience the property's owner and users by impeding
beneficial use of the property and creating a potential hazard."
Majority op., ¶32.
¶72 Even if the majority could sufficiently explain how
Asboth's vehicle posed a potential hazard to public safety, it
errs in stating that it need not consider the exigency of the
situation. Id. Acknowledging that this was not an emergent
situation, the majority simply omits this consideration from its
analysis. Id. Instead, it considers only the public interest,
which does not justify the seizure because Asboth's vehicle was
parked on private property and there was testimony that there
was room to drive around it.
¶73 Finally, I turn to the majority's argument that "the
lack of realistic alternatives to impoundment further reinforces
the reasonableness of the seizure." Majority op., ¶35. As set
forth above, however, no alternatives to impoundment were
considered so there is no evidence as to whether there were
realistic alternatives to impoundment. Again, this is pure
speculation on the part of the majority.
12
No. 2015AP2052-CR.awb
¶74 Considering the facts of this case, it appears that
the impoundment may have been a pretext for an investigatory
police motive. See, e.g., Sanders, 796 F.3d at 1245 (explaining
that Bertine establishes that impoundment is unconstitutional
where police discretion is "exercised as a pretext for criminal
investigation.").
¶75 Just before the vehicle was impounded, Asboth was
arrested on a probation warrant. The car was towed to a city
police impound lot, where it was subsequently searched. During
the search, police removed and held all items of apparent value,
including a pellet gun that was found in the vehicle. The
officers conducting the search testified that they considered it
to be an inventory search, and conducted it according to their
inventory search procedures. However, one officer conducting
the search filled out a form indicating that it was done to
obtain "evidence," rather than the other possible purposes
listed on the form, including "abandoned," "parked in traffic"
or "safekeeping."
¶76 Contrary to the majority, I conclude that the lack of
a compelling public safety need to move Asboth's car suggests
that the police were motivated by the investigation of the armed
robbery in which he was a suspect. Not only are the rationales
offered by the majority hypothetical, but they could be applied
to virtually any vehicle, parked anywhere, at any time. In
Clark, this court rejected a policy that "might lead to the
police towing every unlocked vehicle on the street." 265
Wis. 2d 557, ¶16. Likewise, the majority's conclusion may
13
No. 2015AP2052-CR.awb
justify the seizure of every vehicle after its driver has been
arrested.
¶77 Thus, I conclude that the impoundment of Asboth's
vehicle was unconstitutional. His vehicle was parked on private
property, was not obstructing traffic and posed no imminent
threat to public safety. Under such circumstances, in order to
survive constitutional scrutiny, the impoundment must be
justified by both a standardized policy that limits police
discretion and a reasonable, non-pretextual community-caretaking
rationale. Here there was neither.
II
¶78 Ultimately, I comment on what I and other members of
this court have repeatedly warned: a broad application of the
community caretaker doctrine "raises the specter that the
exception will be misused as a pretext to engage in
unconstitutional searches that are executed with the purpose of
acquiring evidence of a crime." Pinkard, 327 Wis. 2d 346, ¶75.
¶79 I have previously voiced the concern that "today's
close call will become tomorrow's norm." Id., ¶66. Over the
years, that is exactly what has happened. In case after case,
this exception to the Fourth Amendment's warrant requirement has
expanded well beyond the limits of a bona fide community
caretaker function that is "totally divorced from the detection,
investigation, or acquisition of evidence relating to the
violation of a criminal statute." State v. Kramer, 2009 WI 14,
¶23, 315 Wis. 2d 414, 759 N.W.2d 598 (internal quotes and
citations omitted).
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¶80 With today's decision, community caretaking has again
become an end in itself, justifying warrantless impoundments so
long as the police can articulate "a hypothetical community
need." Matalonis, 366 Wis. 2d 443, ¶106 (Prosser, J.,
dissenting). The majority embraces the State's hypothetical.
It reasons that the police served a legitimate public interest
by impounding a vehicle that inconvenienced a private business
and its customers and created a hazard by obstructing vehicle
traffic through the storage facility. Majority op., ¶32.
¶81 Not only has the majority opinion lowered the floor by
deviating from the national trend requiring standardized
criteria, it also has opened a trap door so that the community
caretaker exception may become bottomless. If the community
caretaker impoundment of Asboth's vehicle parked on private
property can be justified due to inconvenience, would any
warrantless seizure be unreasonable in this context? When an
exception to the Fourth Amendment becomes the rule, the privacy
rights of motorists do not receive the constitutional
protections they deserve.
¶82 Accordingly, I respectfully dissent.
¶83 I am authorized to state that Justice SHIRLEY S.
ABRAHAMSON joins this dissent.
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No. 2015AP2052-CR.awb
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