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State v. Asboth

Supreme Court of Wisconsin

July 6, 2017

State of Wisconsin, Plaintiff-Respondent,
Kenneth M. Asboth, Jr., Defendant-Appellant-Petitioner.

          Submitted on Briefs Oral Argument: April 19, 2017

         REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 372 Wis.2d 185, 888 N.W.2d 23 (2016 - Unpublished)

         Circuit Court Dodge County L.C. No. 2012CF384, John R. Storck Judge.

          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.


         ¶1 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 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 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;
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 Court[3] 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."

         ¶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');">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.

         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.


         ¶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).


         ¶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, 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 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. 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 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 ...

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