Submitted on Briefs Oral Argument: April 19, 2017
OF A DECISION OF THE COURT OF APPEALS Reported at 372 Wis.2d
185, 888 N.W.2d 23 (2016 - Unpublished)
Court Dodge County L.C. No. 2012CF384, John R. Storck Judge.
the defendant-appellant-petitioner, there were briefs by
Andrew Hinkel, assistant state public defender, and oral
argument by Andrew Hinkel.
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.
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
reasonably effected a community caretaker impoundment of
Asboth's car, we affirm the decision of the court of
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.
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.
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 the car's owner as not Asboth
but a different person with a City of Madison
address. Rather than abandoning the car on private
property, or contacting the storage facility's owner
about it, the officers chose to impound the car.
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
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.
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
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;
When removal is necessary in the interest of public safety
because of fire, flood, storm, snow or other emergency
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.
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,  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
Court denied 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."
Asboth filed a motion for reconsideration. Relying on
State v. Clark, 2003 WI.App. 121, 265 Wis.2d 557,
666 N.W.2d 112');">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]
(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
(5) Defendant was arrested while in possession of the
vehicle, and was actually observed reaching into the vehicle.
pled no contest, and the circuit court imposed sentence of 10
years initial confinement followed by 10 years extended
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.
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, 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).
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, 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
"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.
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 the individual such that the
community caretaker function was reasonably exercised ....
Matalonis, 366 Wis.2d 443, ¶31 (quoting
Pinkard, 327 Wis.2d 346, ¶29).
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
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 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.
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
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.
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 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 ...