State v. Asboth
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Colorado v. Bertine, 479 U.S.C. 367 (1987), does not require officers to follow “standard criteria” when conducting a community caretaker impoundment.
Defendant, a suspected in the armed robbery of a bank, was arrested under an outstanding probation warrant. Police officers chose to impound the car in which Defendant was found. Officers then conducted an inventory search of the seized vehicle at the police station, a search that turned up several items held for safekeeping. The State then charged Defendant with armed robbery. Defendant moved to suppress the evidence obtained from the search and seizure of the car. The circuit court denied the motion. The Supreme Court affirmed, holding (1) the officers possessed a bona fide community caretaker justification for impounding Defendant’s car; and (2) the warrantless seizure of Defendant’s car after his arrest was constitutionally reasonable under the Fourth Amendment.
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2017 WI 76 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2015AP2052-CR 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 REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 372 Wis. 2d 185, 888 N.W.2d 23 (2016 – Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: JUSTICES: CONCURRED: DISSENTED: July 6, 2017 April 19, 2017 Circuit Dodge John R. Storck 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, solicitor general. attorney general, and Misha Oral argument by Ryan J. Walsh. Tseytlin, 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, FILED Plaintiff-Respondent, JUL 6, 2017 v. Kenneth M. Asboth, Jr., Diane M. Fremgen Clerk of Supreme Court Defendant-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 long REBECCA applied requirement a GRASSL community under Constitution. the BRADLEY, J. caretaker Fourth Affirmed. Wisconsin exception Amendment to courts the to the United have warrant States In this case, Kenneth M. Asboth, Jr., asks us to decide whether law enforcement officers' warrantless seizure of his car caretaker was a reasonable function. He exercise also asks of us a bona to fide community 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. reasonably effected a community caretaker 2015AP2052-CR impoundment of Asboth's car, we affirm the decision of the court of appeals. I. ¶2 BACKGROUND 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. received a tip that he was at a storage When police 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. The State charged Asboth with armed robbery,2 and he ¶7 filed a seizure motion and to search suppress of the all car. evidence obtained Asboth's motion from the 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 2 Court3 denied 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. Asboth's motion. 2015AP2052-CR 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 State Asboth filed a motion for reconsideration. v. Clark, 2003 WI App 121, 265 Relying on 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 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 including electronics. items in the vehicle (5) Defendant was arrested while in possession of the vehicle, and was actually observed reaching into the vehicle. 5 made 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, (Wis. Ct. App. Sept. 29, 2016). unpublished slip op., ¶1 Specifically, Asboth argued that the warrantless seizure was unconstitutional because it was not conducted criteria purpose. to sufficiently justified or pursuant by a Id. bona detailed fide standardized community caretaker 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 concluded caretaker that the justification public need Asboth's privacy interests. to for move the the Id., ¶¶24, 44. seizure, car then outweighed 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. II. ¶10 2015AP2052-CR STANDARD OF REVIEW 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, historical we fact review under a the circuit deferential court's standard, unless they are clearly erroneous. findings upholding v. Robinson, 2010 WI 80, them Second, we independently apply constitutional principles to those facts." State of ¶22, 327 Id. (quoting Wis. 2d 302, 786 N.W.2d 463). III. ¶11 DISCUSSION The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, searches and papers, seizures, and shall effects, not be against violated" Warrants shall issue, but upon probable cause." of the right Wisconsin of the Constitution people to be likewise secure unreasonable in and "no Article I, § 11 provides their that that persons, "[t]he houses, papers, and effects against unreasonable searches and seizures shall not be violated" and that "no warrant shall issue but upon probable cause." § 11 provide historically Constitution Because the Fourth Amendment and Article I, substantively interpreted in accordance identical this with protections, section United interpretations of the Fourth Amendment. 7 of States the we have Wisconsin Supreme Court State v. Dumstrey, 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 presumptively unreasonable." without a valid warrant is 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)). touchstone however, of "the exceptions." This the court enforcement Fourth warrant "[B]ecause the ultimate Amendment requirement is is 'reasonableness,'" subject to certain Brigham City v. Stuart, 547 U.S. 398, 403 (2006). has recognized officer is one "serving protect persons and property." such as exception a where community a caretaker law to 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 State relating v. N.W.2d 598 (1973)). Kramer, to 2009 (quoting When justification for the WI Cady violation 14, v. evaluating a of a ¶¶19-20, criminal 315 Wis. 2d 414, Dombrowski, 413 a community warrantless claimed search or statute." U.S. seizure, 433, 441 caretaker 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 8 759 No. the individual such that the community function was reasonably exercised . . . . Matalonis, 366 Wis. 2d 443, ¶31 2015AP2052-CR caretaker (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 community on the caretaker second test. and third Asboth steps contends of that Wisconsin's 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. ¶15 Bona Fide Community Caretaker Function 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 crisis provider, counselor, few. . . . social youth They are worker, mentor and society's peacemaker, problem solution is apparent or available." intervener, solvers to when family name no a other Matalonis, 366 Wis. 2d 443, ¶29 (quoting Ortiz v. State, 24 So. 3d 596, 607 n.5 (Fla. Dist. 9 No. Ct. App. 2009) specially)). (Torpy, Although a J., concurring court assessing 2015AP2052-CR and concurring 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 caretaker reasonable function. basis" Pinkard, for 327 exercising a Wis. 2d 346, community ¶31 (quoting Kramer, 315 Wis. 2d 414, ¶36). ¶16 United In South Dakota v. Opperman, 428 U.S. 364 (1976), the 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 authority vehicles of ¶17 police impeding convenience context. traffic." is Id. to seize traffic beyond at or 368-69. and remove threatening challenge" in the In short, from the public "[t]he streets safety community and caretaker Id. at 369. 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. predominated over any bona fide community they performed by moving the car. Opperman's examples——impoundment impoundment argues following that the a officers caretaker here function Furthermore, focusing on following parking 2015AP2052-CR an ordinance did not accident and violation——Asboth 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 impounding Asboth's car. caretaker justification for 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. Cir. Cf. United States v. Brown, 787 F.2d 929, 932-33 (4th 1986) impounded" (concluding arrestee's that vehicle officers "could "because the reasonably have car have could 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 private property owner uninvolved in the arrest. the car, the officers immediately remedied a By removing 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. ¶19 2015AP2052-CR 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. 240 (1st Cir. See United States v. Coccia, 446 F.3d 233, 2006) (noting that "officers properly made arrangements for the safekeeping of the [arrestee's] vehicle" when they anticipated that he "would be indisposed indeterminate, and potentially lengthy, period"). for an 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 supporting impoundment). or theft" as one factor 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. else immediately present claiming 12 ownership With no one or otherwise 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 arrestee's the property's property uncertainty during regarding the users his true and protecting detention, ownership combined of the an with vehicle, establish that the officers had a bona fide community caretaker purpose when impounding Asboth's car. objective justifications for the Because we identify these impoundment, our cases make clear that, even if the officers had an additional investigatory interest in officers' seizure conducting subjective of Wis. 2d 414, a subsequent interests the car ¶32 ("[T]he do not inventory render unconstitutional. officer may the See have law search, the warrantless Kramer, 315 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. ¶22 Before we Standard Criteria 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 Bertine Asboth's argument turns on language at the end of the opinion. Although Bertine generally focused on the constitutionality of an inventory search of Bertine's van, the Court concluded inventory by search addressing of his Bertine's van was argument that unconstitutional "the 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 (1983),] v. Lafayette, 462 U.S. 640 prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other activity." Id. (emphasis added). ¶24 than suspicion of evidence of criminal A split exists among the federal courts of appeals regarding Bertine's performing community agree Asboth, with impact on caretaker to impoundments functions. varying degrees, that by Several law officers circuits enforcement officers may constitutionally perform a warrantless community caretaker impoundment only if standard 14 criteria minimize the No. exercise of their discretion. 2015AP2052-CR 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 officers' which in a 'circumscribe way that the furthers discretion the of caretaking individual 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 impounded.").4 are the circumstances in which a car may be 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 need to consider The Fifth Circuit flatly rejects any standardized reasonableness analysis. criteria as part of a 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 United Most States persuasively, v. Coccia, 446 the First F.3d 5 233 Circuit (1st explained Cir. 2006), in its 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 likely, made pursuant although Amendment." not to standardized necessarily Id. at 238. procedures always, will satisfy the most Fourth 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, noninvestigatory 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 assess the reasonableness of the challenged impoundment. to Id. at 239-41. ¶27 that in We agree with the First, Third, and Fifth Circuits cases involving warrantless community caretaker impoundments the fundamental question is the reasonableness of 17 No. the seizure. criteria 2015AP2052-CR Accordingly, we hold that the absence of standard does not by default caretaker impoundment Amendment reasonableness render a warrantless unconstitutional standard. Nor under does community the law Fourth 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 pretext for conducting investigatory inventory searches. First Circuit observed in Coccia, under the as a As 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 criminal activity.'" 479 U.S. at 375). and not exclusively on 'the suspicion of Coccia, 446 F.3d at 239 (quoting Bertine, 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. with unlimited discretion to Far from leaving officers 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 standardized impoundment "[A]doption of 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. U.S. 675, 687 (1985) See United States v. Sharpe, 470 (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"). discuss further below, a Wisconsin court may As we 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. 2. ¶30 Under caretaker enforcement Reasonableness Inquiry the test, 2015AP2052-CR third step we evaluate the officer's exercise of Wisconsin's reasonableness of a bona community of fide the law 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. factor enters the analysis because "[i]n some This 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) (1986)). have (citing New York v. Class, 475 U.S. 106, 112-13 Although many of our recent community caretaker cases raised warrantless Wis. 2d 443, questions searches ¶2; regarding of Pinkard, homes, 327 20 the see, appropriate e.g., Wis. 2d 346, scope Matalonis, ¶1, this of 366 case No. involved Asboth's Therefore, privacy enforcement law lesser interest officers 2015AP2052-CR in impounding a his car. vehicle as community caretakers need not demonstrate the same extraordinary public interest necessary to justify caretaker entry into the home. a warrantless community 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 inconvenience a the vehicle that, property's if owner left and unattended, users by would 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 possibility abating a caretaker of function officers nuisance. specifically acting See for Pinkard, the 327 contemplates similar purpose Wis. 2d 346, ¶20 the of 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 reflect The the circumstances seizure's surrounding reasonableness. the impoundment If abandoned by also 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 the Asboth was already under arrest at the time of impoundment, officers did not make an improperly coercive show of authority Wis. 2d 414, to effect ¶43. To the the seizure. contrary, See the Kramer, seizure 315 actually complied with the terms of both the Beaver Dam and the Dodge County procedures governing impoundments.7 permitted officers to impound a The Beaver Dam policy vehicle held "in lawful custody," and the officers took possession of the car after lawfully arresting Asboth. officers to alternative" decide existed, available here. Additionally, the policy permitted against but impoundment there was no if a sensible "reasonable alternative 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." lawfully arrested Asboth, and it was Again, officers reasonable under the circumstances to infer that the person alone with the vehicle at the storage facility was its driver. did actually comply with the The fact that the seizure 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. this The court of appeals recognized that 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. law enforcement action that would otherwise 2015AP2052-CR result in the vehicle's abandonment. ¶35 Finally, impoundment seizure. the further lack of reinforces realistic the alternatives reasonableness of to the 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. ¶36 2015AP2052-CR 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. that public caretaker interest function, we in Because the officers advanced pursuit hold of the that a bona fide warrantless community seizure of Asboth's car after his arrest was constitutionally reasonable under the Fourth Amendment. IV. ¶37 "The touchstone reasonableness." State v. CONCLUSION of the Tullberg, Fourth 2014 WI Amendment 134, ¶29, is 359 Wis. 2d 421, 857 N.W.2d 120 (quoting Florida v. Jimeno, 500 U.S. 248, 250 (1991)). caretaker Applying Wisconsin's test for the community exception requirement, we to conclude the that Fourth law Amendment's enforcement warrant 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. reasonably when seizing Asboth's vehicle for 2015AP2052-CR 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 limited by the because police requirement discretion that is impoundments sufficiently be based on a reasonable community caretaker concern. ¶39 errs by Compounding expanding its an misdirection, already the bloated majority community further 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 into a powerful investigatory tool." WI 7, ¶106, 366 Wis. 2d 443, 875 a narrow exception State v. Matalonis, 2016 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 communitycaretaking rationale." ¶41 Applying the Sanders, 796 F.3d at 1248. 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, caretaker but upon probable impoundments are an Amendment's warrant requirement. cause. . . ." exception privacy interests narrowly construed. involved, See to the Fourth State v. Pinkard, 2010 WI 81, ¶14, 327 Wis. 2d 346, 785 N.W.2d 592. the Community Given the importance of this exception should be 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. U.S. at 343. 2 See Gant, 556 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. ¶46 Id. at 343. 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. test, prioritizes motorists' privacy rights over deference to police discretion. It limits police like the test discretion standardized regarding policy non-pretextual adopted in Gant, This impoundments governing impoundment community-caretaking by requiring and rationale." a both a "reasonable, 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." U.S. 367, 375 (1987). 3 Colorado v. Bertine, 479 No. 2015AP2052-CR.awb ¶48 have A majority of federal and state appellate courts that 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 federal Yet, the majority follows the minority view of three 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 limited by the because police requirement that discretion is impoundments sufficiently 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 impound officers vehicles at with will investigatory searches." 'uncontrolled' as a pretext Majority op., ¶28. discretion for to conducting However, as set forth in more detail below, that is exactly what happened here. ¶51 The Tenth Circuit's decision illustrative of the national trend. not articulated in any policy, in Sanders is In Sanders, for "reasons [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." ¶52 Id. Sanders acknowledged that "[t]he authority of police to seize and remove from the streets vehicles impeding traffic or threatening challenge." public safety Bertine convenience is beyond Id. at 1244 (quoting South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976)). and and establish "two It further explained that Opperman different, but not inconsistent, rules regarding when impoundments are constitutional." 1245. Opperman required by the establishes community that caretaking warrantless functions Id. at impoundments of protecting public safety and promoting the efficient movement of traffic 5 No. 2015AP2052-CR.awb are constitutional. impoundments are Id. Bertine establishes that warrantless unconstitutional if justified by either a "pretext for a criminal investigation or not exercised according to standardized criteria" that limits police discretion. ¶53 After surveying United States Supreme Id. 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 communitycaretaking rationale." ¶54 Deviating Id. at 1248. from the nationwide limits motorists' privacy rights. trend, the majority Contrary to the majority, I would follow the national trend protecting motorists' privacy rights under standardized the Fourth policy that Amendment limits and police require discretion both a and a reasonable community caretaker rationale. A ¶55 question limited Applying of the whether officer test the set forth policies discretion to in impound above, this I case vehicles turn to the sufficiently 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 situations where vehicle itself concluding that because officers or its the they had limit custody driver." standardized of, impoundment "to respectively, the Majority op., policies in ¶34. this After 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 why or The purpose of standardized criteria is to establish when a vehicle may be taken into custody, but neither policy offers any guidance on this question. here 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." 1250. In contrast, the policy in Sanders, 796 F.3d at 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 policies, could I constitutionally end my sufficient analysis here standardized because a community caretaker impoundment is unconstitutional without standardized procures that limit police discretion. concludes that the police caretaker impoundment of The majority, however, reasonably Asboth's effected car. a Majority community 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 "objective justifications for the the police Majority had op., a bona ¶21. fide Initially, there are a number of impoundment" that establish community it caretaker contends that purpose. 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." the hearing testimony demonstrates Majority op., ¶18. that it was Yet, 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." op., ¶18. Next, it asserts that the police Majority 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 registered owner. ¶69 proffered arrangements to return the vehicle to its Majority op., ¶20. The hearing testimony demonstrates that each of these 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 reasonableness of the warrantless impoundment. to examine the A reasonableness analysis calls for consideration of both "the degree of public interest and the exigency of the situation." 11 State v. Pinkard, 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 its the repeats In same conclusion that analysis of reasonableness, justifications the caretaker function. offered impoundment was a as the majority support bona fide for its community 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." forth above, however, no Majority op., ¶35. alternatives to As set impoundment were considered so there is no evidence as to whether there were realistic alternatives to impoundment. speculation on the part of the majority. 12 Again, this is pure 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. that Bertine See, e.g., Sanders, 796 F.3d at 1245 (explaining establishes that impoundment is unconstitutional where police discretion is "exercised as a pretext for criminal investigation."). ¶75 Just before the vehicle arrested on a probation warrant. was impounded, Asboth was 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 Wis. 2d 557, every ¶16. unlocked Likewise, vehicle the 13 on the majority's street." 265 conclusion may No. 2015AP2052-CR.awb justify the seizure of every vehicle after its driver has been arrested. ¶77 Thus, I conclude that vehicle was unconstitutional. property, was not survive constitutional justified by both a impoundment of Asboth's His vehicle was parked on private obstructing threat to public safety. the traffic and posed no imminent Under such circumstances, in order to scrutiny, the standardized impoundment policy that must limits be 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 exception will misused as be a the specter pretext that engage to the in unconstitutional searches that are executed with the purpose of acquiring evidence of a crime." ¶79 I have previously Pinkard, 327 Wis. 2d 346, ¶75. voiced the concern close call will become tomorrow's norm." years, that is exactly what has happened. that Id., ¶66. "today's Over the 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 violation of a criminal statute." ¶23, 315 Wis. 2d 414, 759 evidence 14 to the State v. Kramer, 2009 WI 14, N.W.2d 598 citations omitted). relating (internal quotes and No. 2015AP2052-CR.awb ¶80 With today's decision, community caretaking has again become an end in itself, justifying warrantless impoundments so long as the need." police can Matalonis, dissenting). articulate 366 "a hypothetical Wis. 2d 443, ¶106 community (Prosser, J., 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. ¶81 Majority op., ¶32. 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. caretaker property impoundment can be of Asboth's justified due If the community vehicle to parked on inconvenience, private would warrantless seizure be unreasonable in this context? any 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 ABRAHAMSON joins this dissent. 15 that Justice SHIRLEY S. No. 2015AP2052-CR.awb 1
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