                                                             2020 WI 60

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:              2018AP1774-CR


COMPLETE TITLE:        State of Wisconsin,
                                 Plaintiff-Respondent,
                            v.
                       Alfonso Lorenzo Brooks,
                                 Defendant-Appellant-Petitioner.

                          REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 388 Wis. 2d 622,935 N.W.2d 559
                                     (2019 – unpublished)

OPINION FILED:         June 25, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:         April 27, 2020

SOURCE OF APPEAL:
   COURT:              Circuit
   COUNTY:             Milwaukee
   JUDGE:              Jeffrey A. Wagner

JUSTICES:
KELLY, J., delivered the majority opinion for a unanimous Court.
NOT PARTICIPATING:



ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
filed by Leon W. Todd, assistant state public defender. There
was an oral argument by Leon W. Todd.


       For the plaintiff-respondent, there was a brief filed by
Abigail C.S. Potts, assistant attorney general; with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Abigail C.S. Potts.
                                                                             2020 WI 60


                                                                    NOTICE
                                                      This opinion is subject to further
                                                      editing and modification.   The final
                                                      version will appear in the bound
                                                      volume of the official reports.
No.     18AP1774-CR
(L.C. No.     2015CF3861)

STATE OF WISCONSIN                                :            IN SUPREME COURT

State of Wisconsin,

              Plaintiff-Respondent,
                                                                         FILED
       v.                                                           JUN 25, 2020

Alfonso Lorenzo Brooks,                                                Sheila T. Reiff
                                                                    Clerk of Supreme Court

              Defendant-Appellant-Petitioner.


KELLY,      J.,   delivered     the    majority    opinion       for     a   unanimous
Court.




       REVIEW of a decision of the Court of Appeals.                     Reversed and

cause remanded.



       ¶1     DANIEL KELLY, J.          Alfonso Lorenzo Brooks was parked
on the side of a road after having been stopped for speeding.

He was alone in the vehicle, and he had been driving with a

suspended operator's license.              Although he told the Milwaukee

Sheriff deputies who were issuing him his traffic citations that

he    could    have   a     licensed   driver     retrieve      the    vehicle,       the

deputies told him department policy required them to take it to

an impound lot.           The deputies conducted an inventory search of
the vehicle prior to the tow.              Mr. Brooks, a convicted felon,
                                                                       No.     2018AP1774-CR



could not lawfully possess the firearm the deputies found, and

so    he    was    arrested.       We   consider       in    this    case    whether       the

deputies        were   performing        a    bona     fide     community          caretaker

function when they seized Mr. Brooks' vehicle without a warrant.

We conclude they were not, and so we reverse the decision of the

court      of     appeals    because    the       seizure     and    ensuing       inventory

search were both unconstitutional.1

                                   I.    BACKGROUND

       ¶2       Late one summer night in 2014, Mr. Brooks came to the

attention of Milwaukee County Sheriff's Deputies Dean Zirzow and

Travis Thompson because he was traveling the Lake Park freeway

at a speed of no less than 15 miles per hour above the posted

speed      limit.      The    deputies       pursued    Mr.    Brooks       and,    once   he

exited the freeway, pulled him over in a mixed commercial and

residential neighborhood.               While performing duties incident to

the    traffic      stop,    the   deputies        learned     Mr.    Brooks'       driver's

license was suspended and that he was a convicted felon.                                   The

deputies cited Mr. Brooks for unreasonable and imprudent speed
and for operating a vehicle with a suspended driver's license.

       ¶3       The deputies did not arrest Mr. Brooks for the traffic

citations, but neither could he drive away at the conclusion of

the traffic stop because he did not have a valid license and he

was alone in the vehicle.                    The deputies informed Mr. Brooks

       This is a review of an unpublished court of appeals
       1

opinion, State v. Brooks, No. 2018AP1774-CR, unpublished slip
op. (Wis. Ct. App. Aug. 20, 2019) (per curiam), affirming the
Milwaukee County Circuit Court, the Honorable Jeffrey A. Wagner,
presiding.

                                              2
                                                                 No.     2018AP1774-CR



that, under those circumstances, department policy required them

to tow the vehicle to an impound lot.2              Mr. Brooks asked if his

girlfriend——to whom the car was registered and who was following

shortly behind him——could retrieve the car from the scene of the

traffic    stop.       Deputy   Zirzow     denied     the    request           because

department   policy    prohibits   non-officials          from    coming       to   the

scene of ongoing police action.3

      ¶4    During    the   dialogue   between      Mr.    Brooks        and   Deputy

Zirzow, Deputy Thompson commenced a warrantless inventory search

of   the   vehicle's    contents   preparatory       to     the        tow.     After

discovering a firearm in the trunk area, the deputies arrested




      2We do not know whether that is an accurate recitation of
the Department's policy because the State never introduced it.
Included with Mr. Brooks' motion for postconviction relief,
however, is a policy entitled "Arrest Tow," which provides: "It
shall be the policy of this agency to tow any vehicle when the
driver and/or owner is arrested and no responsible person is
present, at the time of the arrest, to take control of the
vehicle." If that is the policy to which the deputies referred,
it would not apply in this case because Mr. Brooks was not under
arrest when the deputies made the decision to impound the
vehicle.
      3Mr. Brooks' girlfriend arrived on the scene before the
vehicle was towed.

                                       3
                                                                  No.     2018AP1774-CR



Mr. Brooks for possession of a firearm by a felon, contrary to

Wis. Stat. § 941.29(2)(a) (2013-14).4

     ¶5     Mr. Brooks moved to suppress the firearm, arguing the

warrantless       seizure   of   the   vehicle       and     subsequent     inventory

search    violated    the   Fourth     and     Fourteenth      Amendments     to   the

United States Constitution, as well as Article I, Section 11 of

the Wisconsin Constitution.             Specifically, he argued that the

"community    caretaker"         exception      to    the     Fourth    Amendment's

warrant requirement did not justify seizure of the vehicle.                        The

circuit court denied the motion, after which Mr. Brooks pled

guilty and received his sentence in due course.

     ¶6     Mr.    Brooks   pursued     postconviction          relief,     asserting

that:       (1)     there   had     been       no    valid     "exercise      of   law

enforcement's community caretaker function because the vehicle

was lawfully parked and not obstructing traffic[]"; and (2) Mr.

Brooks' trial counsel was ineffective for failing to introduce

evidence that Mr. Brooks' vehicle had been lawfully parked, and

that the Department's written policies did not authorize the

     4 "A person specified in sub. (1) is guilty of a Class G
felony if he or she possesses a firearm under any of the
following circumstances:   (a) The person possesses a firearm
subsequent to the conviction for the felony or other crime, as
specified in sub. (1)(a) or (b)."     Wis. Stat. § 941.29(2)(a)
(2013-2014).   This provision was repealed after Mr. Brooks'
conviction, see 2015 Wis. Act 109, and the same offense now
appears at Wis. Stat. § 941.29(1m)(a) (2017-2018) ("A person who
possesses a firearm is guilty of a Class G felony if any of the
following applies:    (a) The person has been convicted of a
felony in this state.").

     All subsequent references to the Wisconsin Statutes are to
the 2013-2014 version unless otherwise indicated.

                                           4
                                                                       No.    2018AP1774-CR



decision     to       tow    the   vehicle.         The   circuit    court    denied    the

motion without a hearing, and the court of appeals affirmed.                            We

granted Mr. Brooks' petition for review and now reverse.

                                II.      STANDARD OF REVIEW

      ¶7         "'Whether evidence should be suppressed is a question

of constitutional fact.'"                 State v. Floyd, 2017 WI 78, ¶11, 377

Wis. 2d 394,           898    N.W.2d 560        (quoting    State     v.     Knapp,    2005

WI 127, ¶19, 285 Wis. 2d 86, 700 N.W.2d 899).                           We will review

the   circuit          court's     findings       of   historical     fact     under    the

clearly erroneous standard, but the circuit court's application

of historical facts to constitutional principles is a question

of    law    we        review      independently.           State     v.     Turner,    136

Wis. 2d 333, 343-44, 401 N.W.2d 827 (1987).                         "While we are not

bound by the circuit court's or court of appeals' decisions on

questions of law, we benefit from their analyses."                             Floyd, 377

Wis. 2d 394, ¶11 (citing State v. Kyles, 2004 WI 15, ¶7, 269

Wis. 2d 1, 675 N.W.2d 449).

                                       III.     ANALYSIS
      ¶8         In    this     case      we    decide     whether     the     "community

caretaker" doctrine authorizes law enforcement officers to seize

a vehicle without a warrant when, subsequent to a traffic stop,

they discover the driver and sole occupant of the vehicle does

not have a valid driver's license.                        Our constitution does not

prohibit         all    governmental           seizures,    of      course,    just    the

unreasonable ones.              Wis. Const. art. I, § 11 ("The right of the

people      to    be    secure      in    their     persons,     houses,     papers,   and
effects against unreasonable searches and seizures shall not be
                                                5
                                                                           No.     2018AP1774-CR



violated[.]").5           Warrantless        seizures      (as    occurred          here)    are

presumptively           unreasonable,        and    therefore             unconstitutional.

State    v.      Asboth,     2017       WI 76,      ¶12,    376       Wis. 2d 644,           898

N.W.2d 541       ("A    seizure     conducted       without      a    valid        warrant    is

presumptively           unreasonable."            (internal          marks         omitted)).6

However,        "because     the       ultimate      touchstone            of     the   Fourth

Amendment        [and     Article       I,    Section      11        of     the      Wisconsin

Constitution] is 'reasonableness,' the warrant requirement is

subject to certain exceptions."                    Brigham City, Utah v. Stuart,

547 U.S. 398, 403 (2006).                One of those exceptions allows law

enforcement       officials       to    perform     a   warrantless              seizure    when

acting     in    their     "community        caretaker"         role.            Asboth,     376

Wis. 2d 644, ¶13.

     5 The   United  States  Constitution   contains  the   same
guarantee, and we generally interpret them coextensively. U.S.
Const. amend. IV ("The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated[.]"); State v.
Floyd, 2017 WI 78, ¶19, 377 Wis. 2d 394, 898 N.W.2d 560 (citing
State v. Dumstrey, 2016 WI 3, ¶14, 366 Wis. 2d 64, 873
N.W.2d 502).

     6 See, e.g., State v. Higginbotham, 162 Wis. 2d 978, 990-91,
471 N.W.2d 24 (1991) (stating that "[s]earches conducted
pursuant to a warrant are a more reliable safeguard against
improper searches because the decision to search is made by a
neutral magistrate who has the opportunity to make an informed
and deliberate determination regarding the existence of probable
cause, rather than by officers whose more hurried decisions may
be influenced by the competitive nature of their work and their
desire to discover evidence they suspect may be present at a
given location[]" and that "[w]arrants are also preferred
because a 'warrant assures the individual whose property is
searched or seized of the lawful authority of the executing
officer, his need to search, and the limits of his power to
search.'" (citation omitted)).

                                              6
                                                                        No.     2018AP1774-CR



       ¶9     Before       evaluating          this     exception       to    the    warrant

requirement,         we    should    be     clear      about    which    seizure     we    are

addressing——there           were     two       in     this     case.         Although     they

overlapped for a short period of time while the first was ending

and the second was commencing, they were conceptually distinct.

It     is     essential       that        we    distinguish          them     because      the

constitutionally-acceptable scope and duration of each seizure

is inextricably bound up with its justifiable purpose.

       ¶10    The first seizure occurred when the deputies stopped

Mr. Brooks for speeding.                   See State v. Brereton, 2013 WI 17,

¶24, 345 Wis. 2d 563, 826 N.W.2d 369 ("The stop of an automobile

by law enforcement constitutes a seizure of the vehicle, as well

as its occupants.").                That seizure could last no longer than

necessary to complete the purpose of the traffic stop.                                   Floyd,

377    Wis. 2d 394,         ¶21    ("Traffic         stops     are   meant    to    be   brief

interactions with law enforcement officers, and they may last no

longer than required to address the circumstances that make them

necessary."); see also Rodriguez v. United States, 575 U.S. 348,
354, (2015) ("Because addressing the infraction is the purpose

of    the    stop,    it    may     'last      no     longer    than    is    necessary     to

effectuate th[at] purpose.'" (citation omitted)).                             The duration

of the seizure is, therefore, necessarily co-terminus with the

purpose of the traffic stop:                    "Authority for the seizure thus

ends    when     tasks       tied     to       the     traffic       infraction      are——or

reasonably should have been——completed."                        Rodriguez, 575 U.S. at

354.        The scope of the seizure is similarly delimited by its
purpose:
                                                7
                                                                   No.   2018AP1774-CR


      "The scope of the search must be 'strictly tied to and
      justified by' the circumstances which rendered its
      initiation permissible."    [Terry v. Ohio, 392 U.S. 1,
      19 (1968) (quoting Warden v. Hayden, 387 U.S. 294, 310
      (1967) (Fortas, J., concurring))]. The reasonableness
      requirement of the Fourth Amendment requires no less
      when the police action is a seizure permitted on less
      than   probable   cause   because   of  legitimate   law
      enforcement interests.     The scope of the detention
      must   be   carefully   tailored   to   its   underlying
      justification.
Florida v. Royer, 460 U.S. 491, 500 (1983) (emphasis added).                       So

the   first    seizure       ended    once       the   deputies   accomplished    the

purpose of the traffic stop, to wit, safely issuing the two

citations to Mr. Brooks.

      ¶11     The second seizure occurred when the deputies decided

that Mr. Brooks' lack of a valid driver's license required them

to impound the vehicle.              Deputy Zirzow was still in the process

of issuing the citations to Mr. Brooks (thereby winding down the

first   seizure)          when   Deputy   Thompson       began    inventorying    the

vehicle in preparation for the tow (which commenced the second

seizure).      This is the seizure the State says was justified by

the community caretaker doctrine, and which we now address.
                     A.    The Community Caretaker Exception

      ¶12     When    the    State     claims      law   enforcement's     community

caretaker role justifies a seizure, as it does here, we evaluate

the following three criteria:

      (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[.]

                                             8
                                                               No.     2018AP1774-CR



Asboth, 376 Wis. 2d 644, ¶13 (citation omitted).7                    Because there

is a presumption against warrantless seizures, the State bears

the burden of proving the community caretaker doctrine justified

seizure of the vehicle Mr. Brooks was driving.                 State v. Payano-

Roman, 2006 WI 47, ¶30, 290 Wis. 2d 380, 714 N.W.2d 548 ("The

government bears the burden of proving that a warrantless search

falls within one of the narrowly drawn exceptions.").

     ¶13   Our focus in this case is on the second element——

whether    the   police   were    performing       a    bona    fide     community

caretaker function.8      "The community caretaker exception to the

warrant    requirement[,]"       we   have      said,    "accounts       for    the

multifaceted     nature   of   police       work[]"——"'first     aid     provider,

social worker, crisis intervener, family counselor, youth mentor

and peacemaker, to name a few.'"              Asboth, 376 Wis. 2d 644, ¶15


     7 The third element, although not implicated in this case,
involves "balancing a 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." State v.
Kramer, 2009 WI 14, ¶40, 315 Wis. 2d 414, 759 N.W.2d 598. This
"balancing" includes:

     (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., ¶¶40-41.
     8 The parties agree that the deputies "seized" the vehicle
within the meaning of the Fourth Amendment.

                                        9
                                                                         No.   2018AP1774-CR



(citation omitted).               The police are often "'society's problem

solvers when no other solution is apparent or available.'"                              Id.

(citation       omitted).             When     functioning          as     a    "community

caretaker," a seizure is permissible to "protect persons and

property"9 so long as it is "totally divorced from the detection,

investigation,         or    acquisition       of       evidence     relating      to   the

violation of a criminal statute."10

       ¶14    The nature and use of motor vehicles frequently call

upon       police    to     act    in   this       capacity.         "To       permit   the

uninterrupted        flow     of   traffic        and   in   some    circumstances       to

preserve evidence, disabled or damaged vehicles will often be

removed from the highways or streets at the behest of police

engaged solely in caretaking and traffic-control activities."

South Dakota v. Opperman, 428 U.S. 364, 368 (1976).                              The same

rationale       might       require     towing      illegally        parked      vehicles:

"Police      will    also    frequently      remove       and   impound        automobiles

which violate parking ordinances and which thereby jeopardize

both the public safety and the efficient movement of vehicular
traffic."       Id. at 368-69.           This interaction between individual

vehicles and the general public means that "[t]he authority of

police to seize and remove from the streets vehicles impeding

traffic or threatening public safety and convenience is beyond

challenge."         Id. at 369.

       State v. Pinkard, 2010 WI 81, ¶14, 327 Wis. 2d 346, 785
       9

N.W.2d 592.

       Kramer, 315 Wis. 2d 414, ¶¶19-20
       10                                                          (quoting      Cady    v.
Dombrowski, 413 U.S. 433, 441 (1973)).

                                             10
                                                                  No.    2018AP1774-CR



       ¶15    We considered the application of this doctrine in the

motor vehicle context in Asboth, 376 Wis. 2d 644, upon which the

State relies heavily in this case.             Mr. Asboth, wanted for armed

robbery, drove to a private storage facility and parked his car

in an alley between two storage sheds.                    Id., ¶¶2-3.        The car

"entirely blocked access to one storage unit, and it impeded

access to several others."              Id., ¶4.       Police found him there,

placed him under arrest, and towed his car to an impound lot.

Id.    We concluded the police had justifiably seized the car in

their community caretaker role for three reasons.                          First, we

explained      that   leaving     Mr.    Asboth's      vehicle      unattended       on

private property "would have inconvenienced a private property

owner and customers at the storage facility by impeding the

beneficial      use   of   the   property."        Id.,    ¶18.         Removing    the

vehicle, we said, "remedied a potential disruption created by

Asboth's arrest at the private storage facility, thus limiting

the inconvenience to the property owner and customers."                             Id.

Second, we said that "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 that the

vehicle       would   remain     abandoned     for     that    amount       of     time

"counseled in favor of its removal from the premises."                             Id.,

¶19.      Finally, we said that because Mr. Asboth was not the

registered owner of the vehicle and no one else was present to

take possession, "the possibility existed that officers would

need to make arrangements to reunite the car with its registered
owner."       Id., ¶20.     Taken as a whole, we concluded that these
                                         11
                                                                            No.        2018AP1774-CR



reasons       "establish[ed]              that    the        officers    had      a    bona     fide

community caretaker purpose when impounding Asboth's car."                                      Id.,

¶21.

         B.       Application Of The Community Caretaker Exception

       ¶16     Determining           whether       law        enforcement      officials         are

acting       in    their      community          caretaker        role    is      an     objective

analysis.            That    is,     we     look        to    whether    "the         officer    has

articulated an objectively reasonable basis under the totality

of the circumstances for the community caretaker function[.]"

State     v.       Kramer,         2009     WI 14,       ¶36,     315    Wis. 2d 414,            759

N.W.2d 598.           Here,        the    State's       argument     closely          follows    our

analytical         structure        in     Asboth.           It   says   the      seizure       "was

supported by the danger of theft or vandalism to a vehicle left

unattended for an unanticipated amount of time."                                 It also notes

that Mr. Brooks "was not the registered owner of the car, so the

officers       had    a     duty    to     the    registered       owner    to        protect    the

vehicle."          In addition, it says "[t]he car was parked far from

the curb, potentially impeding traffic along the side of the
street," and "[i]t was far enough away from Brooks' residence

that it could be difficult for a member of his household to

retrieve it expeditiously if any issues with the car arose."

Finally, the State says the seizure had nothing to do with any

investigatory purpose inasmuch as the deputies testified they

were simply carrying out a department policy that required them

to tow the vehicle under the circumstances then present.

       ¶17     This       case      bears        some    superficial        similarities          to
Asboth.       In both cases the drivers were alone, they were not the
                                                   12
                                                                    No.    2018AP1774-CR



registered owners of the seized vehicles, and the initial reason

for their interaction with law enforcement bore no connection to

the need to seize the vehicle.                 But there is a fundamental

distinction        between    the    cases          that     overshadows          those

similarities and deprives them of any instructive value.                             To

wit,    law    enforcement   officers     in       Asboth   arrested       the    driver

before they seized the vehicle he was driving, whereas here the

deputies did not arrest Mr. Brooks until                     after the seizure.

That     difference    sidelines    two       of    the     three     justifications

addressed in Asboth, and the factual record does not support the

third.       We will address each of them in turn.

       ¶18    First, the sequence of seizure and arrest in this case

negates the State's concern that leaving the vehicle unattended

for an indeterminate amount of time would subject it to the risk

of theft or vandalism.           There is, in fact, nothing to suggest

the    vehicle    would   have    been    unattended         at     all,   much    less

indefinitely.       At the time the deputies decided to impound the

vehicle, Mr. Brooks was not under arrest, which means he could
have simply waited in the car until a licensed driver came to

pick it up.11       And even if he had walked the two miles home to

summon assistance, nothing in the record suggests that such a

brief absence would measurably increase the risk of theft or




       As it turned out, Mr. Brooks' girlfriend arrived on the
       11

scene before the vehicle was towed (but after Mr. Brooks had
been arrested).

                                         13
                                                                         No.      2018AP1774-CR



vandalism.12            This is markedly different from the circumstances

obtaining in Asboth, in which the driver's pre-seizure arrest

guaranteed the vehicle would be indefinitely unattended.

       ¶19        Second, the sequence of events in this case means the

deputies owed no particular duty to the vehicle's registered

owner.       In Asboth we acknowledged that arresting the driver gave

rise    to    the        possibility      "that       officers      would     need       to    make

arrangements            to   reunite     the   car     with    its    registered         owner."

Asboth,       376       Wis. 2d 644,      ¶20.        But     the    burden    fell       to    the

officers only because they had arrested Mr. Asboth, which would

presumably make it difficult for him to make such arrangements

himself.          Here, Mr. Brooks was not under arrest and so he was

free to attend to whatever arrangements were necessary to move

the car.          And nothing about the situation suggested he might not

be in lawful possession of the vehicle.                          So, unlike Asboth, the

deputies in this case had no apparent duty to "reunite the car

with its registered owner."

       ¶20        The seizure/arrest sequence in this case, therefore,
makes       two    of    the     three    Asboth      justifications        for      a   vehicle

seizure entirely inoperable.                     And the record simply does not

support       the       third.      The    State       tried    to    tie     this       case    to

Opperman's          concern      for     ensuring      "the     efficient      movement          of

vehicular traffic,"13 and Asboth's14 concern that the vehicle's

       Every
       12             vehicle parked in public is theoretically at risk
of theft or          vandalism.   But that does not mean impounding any
such vehicle          is a bona fide act of community caretaking.   The
risk must be         real, not theoretical.
       13   South Dakota v. Opperman, 428 U.S. 364, 369 (1976).

                                                 14
                                                                       No.     2018AP1774-CR



placement     not      impede   or    inconvenience           other    members       of   the

public as they go about their business.                       To this end, it argued

that Mr. Brooks' vehicle was "potentially impeding traffic along

the side of the street."               Mr. Brooks, however, has maintained

ever since the suppression hearing that the car appeared to be

lawfully parked along the side of the road.                           The State faults

Mr. Brooks for not proving that assertion, pointing to the lack

of any findings of fact in that regard.                         But this gap in the

record is a problem for the State, not Mr. Brooks.                           As mentioned

above, warrantless seizures are presumptively unconstitutional,

which      puts     the      burden     on        the    State        to     prove    their

reasonableness.           Payano-Roman, 290 Wis. 2d 380, ¶30.                        If the

deputies had to act in their community caretaker role to prevent

the vehicle from impeding traffic flow, it was the State's duty

to prove such a necessity.                  But the record shows it made no

attempt     to    do   so.      Even    now,       the    State's      most     definitive

argument     on     the   subject      is    that       the   vehicle        "potentially"

impeded traffic.          Without a supporting factual record, this is,
at best, speculative.            And we will not base our analysis on

speculation.        See, e.g., State v. Carter, 2010 WI 77, ¶63 n.48,

327   Wis. 2d 1,       785   N.W.2d 516       ("This      court       does    not    resolve

cases on the basis of speculation, confabulation, or 'theories'

about what may or may not have occurred.                       We resolve this case




       State v. Asboth, 2017 WI 76, ¶18, 376 Wis. 2d 644, 898
      14

N.W.2d 541.

                                             15
                                                      No.   2018AP1774-CR



on the basis of the record before us and the circuit court's

findings of fact based on that record.").15

     ¶21   Finally,   the   State   says   the   deputies   "reasonably

exercised their community caretaker function in towing the car

and inventorying it, because they did so according to reasonable

standard criteria articulated by the Milwaukee County Sheriff’s

Department[.]"   Although this part of the State's argument is


     15The State did not dispute Mr. Brooks' assertion in the
circuit court that his vehicle appeared to be parked legally on
the side of the road.       Here, however, the State says the
deputy's squad-car video shows that "several vehicles that drive
by have to enter the other lane to avoid the officers' and
Brooks' car."   To the extent the State means for us to accept
this as a refutation of Mr. Brooks' assertion that he was parked
legally, it is too little and too late. It is commonplace for
drivers, out of concern for officer safety, to give a wide berth
to law enforcement officials when they have someone pulled over
on the side of the road.    They may not have entered the other
lane had a squad car not been present.

     But even if we accepted the State's interpretation of the
video footage, this would simply create a factual dispute as to
whether the car was parked legally.    In such circumstances, we
review the circuit court's findings of fact to determine whether
they are clearly erroneous.     See, e.g., State v. Walli, 2011
WI App 86, ¶17, 334 Wis. 2d 402, 799 N.W.2d 898 ("when evidence
in the record consists of disputed testimony and a video
recording, we will apply the clearly erroneous standard of
review when we are reviewing the trial court's findings of fact
based on that recording."). Here, however, there are no factual
findings to review, so we could not accept the State's position
without finding facts in the first instance. This we do not do.
See, e.g., Phelps v. Physicians Ins. Co. of Wisconsin, Inc.,
2005 WI 85, ¶4 n.4, 282 Wis. 2d 69, 698 N.W.2d 643 (remanding to
the circuit court to determine a factual issue because this
court "cannot find facts[.]"); State v. Owens, 148 Wis. 2d 922,
930, 436 N.W.2d 869 (1989) ("Sorting out the conflicts and
determining what actually occurred is uniquely the province of
the trial court, not the function of the appellate court.").

                                    16
                                                                       No.      2018AP1774-CR



not entirely clear, it appears to suggest that compliance with

the Department's standardized policy means, ipso facto, that the

deputies were acting as community caretakers.                             But compliance

with an internal policy has nothing to do with whether they were

acting in that role when they impounded the car.                          A standardized

policy may provide some evidence that the police performed their

community caretaker role reasonably, but it cannot establish the

predicate——that they were acting as community caretakers.                               As we

observed in State v. Guy, 172 Wis. 2d 86, 100, 492 N.W.2d 311

(1992), law enforcement policies cannot substitute for a case-

by-case application of constitutional requirements to the facts

at hand.      Even if we were to accept that there is a Departmental

policy       that        explicitly      requires       impoundment          under      these

circumstances, the policy's existence is not evidence that the

deputies were acting as community caretakers.

      ¶22     So     neither      Opperman,      nor    Asboth,       nor     the    alleged

Departmental policy tells us that the deputies were acting as

community caretakers when they impounded Mr. Brooks' vehicle.
On   the     other       hand,    State    v.    Clark,       2003    WI App 121,          265

Wis. 2d 557, 666 N.W.2d 112, provides a closer analogy and more

helpfully illuminates the limitations of the community caretaker

doctrine in the vehicular context.                    There, police responded to a

report of shots fired and, upon arrival at the scene, discovered

a    spent    shell        casing     several      feet      from    an      unlocked      and

unoccupied      vehicle.          Id.,    ¶¶2-4.       The    police      had    reason     to

believe Mr. Clark had been driving the car earlier that day, but
found    that       it    was    registered      to    someone       else.          Id.,   ¶4.
                                            17
                                                                           No.     2018AP1774-CR



Although the vehicle was neither damaged nor illegally parked,

the police impounded it for safekeeping simply because it was

unlocked and unattended.            Id.        The court of appeals rejected the

State's argument that Opperman justified impounding the vehicle

under    those   circumstances        as        an       exercise     of     the     community

caretaker function.          Clark, 265 Wis. 2d 557, ¶22.                        It observed

that the situation presented none of the "typical public safety

concerns" identified in Opperman.                        Clark, 265 Wis. 2d 557, ¶22.

Specifically, it said the vehicle was not "(1) involved in an

accident; (2) interrupting the flow of traffic; (3) disabled or

damaged; (4) violating parking ordinances; or (5) in any way

jeopardizing     the   public       safety          or    the    efficient       movement    of

vehicular    traffic."        Id.         To    the       contrary,    the       vehicle    was

"legally     parked    and    undamaged[]"                and    therefore         "posed    no

apparent public safety concern."                    Id.16       This case does not even

rise to Clark's level of concern.                          Mr. Brooks was not under

arrest when the deputies chose to impound his vehicle, so he

could have stayed with his car after issuance of the traffic
citations.       If an unlocked, unattended car cannot justify a

community    caretaker       seizure,          an        attended    vehicle         certainly



    16 Clark   could   have  ended   its  analysis  with  these
observations because they demonstrate the circumstances did not
present an actual need for the police to act in their community
caretaker role.    The Clark court, however, proceeded to the
third step of the analysis and concluded that, because there
were available alternatives to impounding the vehicle, the
seizure was unreasonable.     State v. Clark, 2003 WI App 121,
¶¶25-26, 265 Wis. 2d 557, 666 N.W.2d 112.

                                               18
                                                                            No.    2018AP1774-CR



cannot.     This case presents even less of a caretaking need than

Clark.

      ¶23     We conclude the deputies were not acting as community

caretakers when they decided to impound Mr. Brooks' vehicle.                                     To

justify a seizure pursuant to this doctrine, the State must

demonstrate the circumstances at hand called upon the police to

perform     one    of     their       non-investigatory              functions,         such     as

protecting persons or property, providing first aid, intervening

in a crisis, serving as a peacemaker, or otherwise acting as

"'society's problem solvers when no other solution is apparent

or    available.'"           Asboth,         376        Wis. 2d 644,         ¶15        (citation

omitted).      But here there was no property or person in need of

protection,       no    crisis,   and       no    problem       that       did    not    have    an

apparent and available solution.                       There was just a man in a car

on the side of a road making arrangements for someone to take

him   home.       Consequently,            the    State       has    not    "articulated         an

objectively       reasonable          basis           under    the     totality          of     the

circumstances for the community caretaker function[.]"                                   Kramer,
315 Wis. 2d 414, ¶36.17

                                      C.    The Search

      ¶24     When law enforcement officers have a constitutionally-

legitimate reason for impounding a vehicle, they may inventory

its   contents         without    a    warrant          and     without       violating         the

       Our conclusion that the deputies were not acting as bona
      17

fide community caretakers when they seized Mr. Brooks' vehicle
means we need not progress to the third element of the doctrine,
which considers whether law enforcement officers' performed that
role reasonably.

                                                 19
                                                                  No.      2018AP1774-CR



constitution.        The purpose of such a search is "the protection

of the owner's property while it remains in police custody; the

protection of the police against claims or disputes over lost or

stolen property; and the protection of the police from potential

danger."        Opperman,      428      U.S. at       369     (internal      citations

omitted).      "It is also settled that a police inventory search is

among   the    few    exceptions     to   the    warrant      requirement      of    the

fourth amendment."         State v. Callaway, 106 Wis. 2d 503, 510, 317

N.W.2d 428 (1982).

      ¶25     But    the   permissibility        of   such     inventory      searches

depends entirely on the constitutionality of the seizures that

precede     them.      See,   e.g.,     Clark,    265       Wis. 2d 557,     ¶11    ("An

analysis of an inventory search involves a two-step process:

(1) analysis of the reasonableness of the seizure of the car in

the first instance; and (2) analysis of the reasonableness of

the   inventory      search.").       Because     the       seizure   in    this    case

violated the Fourth Amendment and Article I, Section 11 of the

Wisconsin Constitution, so did the ensuing inventory search.
                                  IV.     CONCLUSION

      ¶26     The community caretaker doctrine recognizes and makes

allowance for the multifaceted nature of police work, but it has

its limits.         Because we conclude the deputies in this case were

not acting as bona fide community caretakers when they seized

Mr. Brooks' vehicle, we hold that the court of appeals erred in




                                          20
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affirming the circuit court's denial of Mr. Brooks' suppression

motion and we therefore reverse.18

     By   the   Court.—The   decision   of   the   court    of   appeals   is

reversed and the cause is remanded to the circuit court for

further proceedings consistent with this opinion.




     18As an alternative basis for reversing the court of
appeals, Mr. Brooks argues his trial counsel was ineffective
for:    (1) failing to introduce the Department's written
policies, which Mr. Brooks asserts did not authorize the tow and
inventory search under these circumstances because they referred
only to tows subsequent to arrest; and (2) failing to introduce
evidence he was lawfully parked.       Because we conclude the
community caretaker exception does not apply and suppression of
the firearm is therefore required, it is unnecessary to address
this alternative argument.

                                   21
    No.   2018AP1774-CR




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