                                                                         2017 WI 76

                  SUPREME COURT              OF    WISCONSIN
CASE NO.:               2015AP2052-CR
COMPLETE TITLE:
                        State of Wisconsin,
                                  Plaintiff-Respondent,
                             v.
                        Kenneth M. Asboth, Jr.,
                                  Defendant-Appellant-Petitioner.

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                                        (2016 – Unpublished)

OPINION FILED:          July 6, 2017
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          April 19, 2017

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Dodge
   JUDGE:               John R. Storck

JUSTICES:
   CONCURRED:
   DISSENTED:           A.W. BRADLEY, J. dissents, joined by ABRAHAMSON,
                        J. (opinion filed).
  NOT PARTICIPATING:


ATTORNEYS:


       For the defendant-appellant-petitioner, there were briefs
by   Andrew       Hinkel,    assistant   state    public   defender,      and   oral
argument by Andrew Hinkel.


       For the plaintiff-respondent, there was a brief by Ryan J.
Walsh, chief deputy solicitor general, with whom on the brief
were    Brad      D.   Schimel,   attorney   general,      and   Misha   Tseytlin,
solicitor general.           Oral argument by Ryan J. Walsh.
                                                                                     2017 WI 76
                                                                             NOTICE
                                                         This opinion is subject to further
                                                         editing and modification.   The final
                                                         version will appear in the bound
                                                         volume of the official reports.
No.     2015AP2052-CR
(L.C. No.    2012CF384)

STATE OF WISCONSIN                                   :                 IN SUPREME COURT

State of Wisconsin,

             Plaintiff-Respondent,                                                FILED
       v.                                                                     JUL 6, 2017
Kenneth M. Asboth, Jr.,                                                         Diane M. Fremgen
                                                                             Clerk of Supreme Court

             Defendant-Appellant-Petitioner.




       REVIEW of a decision of the Court of Appeals.                            Affirmed.



       ¶1    REBECCA       GRASSL     BRADLEY,    J.          Wisconsin           courts      have

long    applied     a    community    caretaker      exception            to      the    warrant

requirement        under   the   Fourth      Amendment        to       the     United      States
Constitution.           In this case, Kenneth M. Asboth, Jr., asks us to

decide whether law enforcement officers' warrantless seizure of

his    car   was    a    reasonable    exercise      of       a    bona       fide    community

caretaker     function.          He   also    asks       us       to   determine         whether

Colorado v. Bertine, 479 U.S. 367 (1987), requires officers to

follow "standard criteria" when conducting a community caretaker

impoundment.        We hold that Bertine does not mandate adherence to
standard criteria, and because we further conclude that officers
                                                              No.   2015AP2052-CR



reasonably      effected     a    community       caretaker   impoundment     of

Asboth's car, we affirm the decision of the court of appeals.

                                  I.   BACKGROUND

    ¶2      Asboth was a wanted man in November 2012.                  He was a

suspect in the armed robbery of a Beaver Dam bank, and there was

an outstanding probation warrant for his arrest.                    When police

received    a   tip   that   he    was   at   a   storage   facility   in   Dodge

County, outside the City of Beaver Dam, both the Dodge County

Sheriff's Department and Beaver Dam Police responded by sending

officers to the storage facility to apprehend him.

    ¶3      The sheriff's deputy arrived first and saw a person

matching Asboth's description reaching into the back seat of a

car parked between two storage sheds.                Drawing his weapon, the

deputy ordered the person to come out of the vehicle with his

hands up.       Asboth, complying with the command, confirmed his

identity after the deputy arrested him.                 Officers from Beaver

Dam soon arrived at the storage facility, and Asboth was placed

in the back seat of a squad car until they could transport him
for questioning.

    ¶4      After Asboth's arrest, his car remained parked at the

storage facility.       None of the arresting officers asked Asboth

if he could arrange to have the car moved.              Although the car sat

in the middle of the alley between two storage sheds, space

remained available for a vehicle to maneuver around it and drive

through the alley.       The car, however, entirely blocked access to

one storage unit, and it impeded access to several others.                  When
the officer ran a check of the car's registration, it identified
                                         2
                                                 No.   2015AP2052-CR



the car's owner as not Asboth but a different person with a City

of Madison address.1   Rather than abandoning the car on private

property, or contacting the storage facility's owner about it,

the officers chose to impound the car.

    ¶5   Both the Beaver Dam Police Department and the Dodge

County Sheriff's Department had policies for officers to follow

when deciding whether to impound a vehicle.      The Beaver Dam

policy provided:

    Any officer having a vehicle in lawful custody may
    impound said vehicle.    The officer will have the
    option not to impound said vehicle when there is a
    reasonable alternative; however, the existence of an
    alternative does not preclude the officer's authority
    to impound.
The Dodge County policy provided more specific guidance:

         Deputies of the Dodge County Sheriff's Department
    are authorized to arrange for towing of motor vehicles
    under the following circumstances:

         When any vehicle has been left unattended upon a
    street or highway and is parked illegally in such a
    way as to constitute a definite hazard or obstruction
    to the normal movement of traffic;

         . . . .

         When the driver of a vehicle has been taken into
    custody by a deputy, and the vehicle would thereby be
    left unattended;

         . . . .

    1
       Subsequent investigation revealed that the registered
owner sold the car to Asboth, but neither Asboth nor the former
owner notified the Department of Transportation of the transfer.
Because of this omission, the officers did not know at the time
of the arrest that Asboth actually owned the car.


                                3
                                                                   No.     2015AP2052-CR


         When removal is necessary in the interest of
    public safety because of fire, flood, storm, snow or
    other emergency reasons;

                  . . . .

         Unless otherwise indicated, the deputy always has
    the discretion to leave the vehicle at the scene and
    advise the owner to make proper arrangements for
    removal.
    ¶6            Because the impound lot at the Dodge County Sheriff's

Department was full, the officers and deputies agreed to tow the

car to the Beaver Dam police station.                       Consistent with police

department procedures, officers conducted an inventory search of

the seized vehicle at the police station.                      The search turned up

several items that the department held for safekeeping:                        a video

game system, a cell phone, an MP3 player, keys, and an orange

water bottle containing green leafy material.                     In the spare tire

compartment beneath a false floor in the trunk, officers also

found a pellet gun, which resembled the handgun used in the

Beaver Dam robbery.

    ¶7            The State charged Asboth with armed robbery,2 and he

filed    a    motion        to   suppress   all     evidence    obtained     from   the

seizure      and     search      of   the   car.      Asboth's    motion     initially

challenged the constitutionality of the inventory search itself.

After hearing testimony from four police officers and sheriff's

deputies involved with Asboth's arrest and with the seizure and

search       of    his   car,     the   Dodge      County   Circuit   Court3    denied
    2
       See Wis. Stat. § 943.32(1)(b) and (2), § 939.50(3)(c), and
§ 939.62(1)(c) (2015-16).
    3
         The Honorable John R. Storck, presiding.


                                             4
                                                                       No.    2015AP2052-CR



Asboth's motion.         In its order denying the motion, the circuit

court made findings relevant to the impoundment:                         "[t]he vehicle

could not be left where it was and needed to be impounded";

"[t]he officers involved believed that the vehicle belonged to

someone    other      than    [Asboth]";        and    "[i]t    is     undisputed      that

Beaver Dam police conducted the inventory search according to

established procedures."

    ¶8         Asboth filed a motion for reconsideration.                     Relying on

State     v.    Clark,       2003   WI   App      121,        265     Wis. 2d 557,      666

N.W.2d 112, Asboth argued that the officers unconstitutionally

seized the car from the storage facility.                           Following a hearing

at which Asboth supplemented the record with testimony by more

officers,       the    circuit      court       denied    the        motion    and     made

additional findings:

         (1) Both the Dodge County Sheriff's Department
    and the Beaver Dam Police Department's written
    policies favor[ed] impoundment . . . .

         (2) The   vehicle    was   parked   on   another
    individual's property, not legally parked on a public
    street.

         (3) The vehicle was blocking access to more than
    one of the business's storage lockers and impeding
    travel by other customers through the complex.

         (4) There were valuable                      items    in     the    vehicle
    including electronics.

         (5) Defendant was arrested while in possession of
    the vehicle, and was actually observed reaching into
    the vehicle.




                                            5
                                                                      No.    2015AP2052-CR



Asboth pled no contest, and the circuit court imposed sentence

of 10 years initial confinement followed by 10 years extended

supervision.

      ¶9     In the court of appeals, Asboth challenged the circuit

court's denial of his suppression motion, but he limited his

argument to the constitutionality of the seizure of the car.

State   v.   Asboth,       No. 2015AP2052-CR,          unpublished       slip    op.,   ¶1

(Wis. Ct. App. Sept. 29, 2016).                      Specifically, Asboth argued

that the warrantless seizure was unconstitutional because it was

not   conducted      pursuant      to    sufficiently         detailed      standardized

criteria     or    justified      by     a    bona     fide    community        caretaker

purpose.     Id.         Assuming without deciding that Bertine requires

law enforcement officers to follow standardized criteria when

seizing a vehicle, the court of appeals concluded that the Dodge

County Sheriff's Department's policy applied and authorized the

seizure.          Id.,    ¶¶11,    20.        Turning     to    Asboth's        community

caretaker argument, the court of appeals first rebuffed Asboth's

contention that an investigatory purpose negated the bona fide
community     caretaker         justification          for     the     seizure,      then

concluded    that        the   public    need     to   move     the    car   outweighed

Asboth's privacy interests.                  Id., ¶¶24, 44.           Accordingly, the

court of appeals affirmed the circuit court's denial of the

motion to suppress.            Id., ¶45.      Asboth petitioned this court for

review, again limiting his argument to the constitutionality of

the seizure, and we granted his petition.




                                              6
                                                                               No.    2015AP2052-CR



                                 II.       STANDARD OF REVIEW

       ¶10      We review an order granting or denying a motion to

suppress evidence as a question of constitutional fact, which

requires a two-step analysis.                              State v. Matalonis, 2016 WI 7,

¶28, 366 Wis. 2d 443, 875 N.W.2d 567, cert. denied, 137 S. Ct.

296.         "First,       we     review          the       circuit     court's      findings    of

historical       fact      under       a    deferential            standard,    upholding       them

unless they are clearly erroneous.                                 Second, we independently

apply constitutional principles to those facts."                                     Id. (quoting

State      v.    Robinson,        2010       WI        80,    ¶22,     327    Wis. 2d 302,       786

N.W.2d 463).

                                       III.        DISCUSSION

       ¶11      The Fourth Amendment to the United States Constitution

provides that "[t]he right of the people to be secure in their

persons,        houses,         papers,          and       effects,     against      unreasonable

searches        and   seizures,            shall       not    be    violated"     and   that    "no

Warrants shall issue, but upon probable cause."                                 Article I, § 11

of   the     Wisconsin          Constitution               likewise    provides      that     "[t]he
right   of      the    people      to       be    secure       in     their   persons,      houses,

papers, and effects against unreasonable searches and seizures

shall not be violated" and that "no warrant shall issue but upon

probable cause."                Because the Fourth Amendment and Article I,

§ 11    provide        substantively               identical          protections,       we     have

historically          interpreted                this        section     of     the     Wisconsin

Constitution          in   accordance             with       United    States     Supreme     Court

interpretations of the Fourth Amendment.                                  State v. Dumstrey,


                                                       7
                                                                                No.     2015AP2052-CR



2016 WI 3, ¶14, 366 Wis. 2d 64, 873 N.W.2d 502 (citing State v.

Arias, 2008 WI 84, ¶20, 311 Wis. 2d 358, 752 N.W.2d 748).

       ¶12   "A    seizure          conducted          without        a     valid      warrant      is

presumptively unreasonable."                      State v. Brereton, 2013 WI 17,

¶24, 345 Wis. 2d 563, 826 N.W.2d 369 (citing United States v.

Ross, 456 U.S. 798, 824-25 (1982)).                              "[B]ecause the ultimate

touchstone        of     the       Fourth         Amendment          is     'reasonableness,'"

however,     "the        warrant          requirement          is     subject          to     certain

exceptions."       Brigham City v. Stuart, 547 U.S. 398, 403 (2006).

This    court     has        recognized       one       such     exception            where    a   law

enforcement       officer         is    "serving        as   a      community         caretaker     to

protect persons and property."                         State v. Pinkard, 2010 WI 81,

¶14, 327 Wis. 2d 346, 785 N.W.2d 592.

       ¶13   Specifically, law enforcement officers may conduct a

warrantless seizure without violating the Fourth Amendment when

performing community caretaker functions——those actions "totally

divorced from the detection, investigation, or acquisition of

evidence     relating         to       the   violation         of    a     criminal         statute."
State   v.   Kramer,          2009      WI   14,       ¶¶19-20,      315        Wis. 2d 414,       759

N.W.2d 598      (quoting           Cady      v.    Dombrowski,            413    U.S.       433,   441

(1973)).          When        evaluating          a     claimed           community         caretaker

justification          for    a    warrantless          search       or    seizure,         Wisconsin

courts apply a three-step test, which asks

       (1) whether a search or seizure within the meaning of
       the Fourth Amendment has occurred; (2) if so, whether
       the police were exercising a bona fide community
       caretaker function; and (3) if so, whether the public
       interest outweighs the intrusion upon the privacy of


                                                   8
                                                                          No.       2015AP2052-CR


       the individual such that the community                                  caretaker
       function was reasonably exercised . . . .
Matalonis,         366      Wis. 2d 443,            ¶31     (quoting           Pinkard,        327

Wis. 2d 346, ¶29).

       ¶14    There is no dispute that a seizure of Asboth's car

occurred within the meaning of the Fourth Amendment, so this

case    turns       on    the    second     and       third       steps    of       Wisconsin's

community     caretaker          test.     Asboth         contends    that       the    seizure

satisfied neither the second nor the third steps because an

overriding investigatory purpose negated the officers' bona fide

community caretaker justification for moving the car, and the

public interest in seizing his car did not outweigh his privacy

interest in leaving it at the storage facility.                                     Further, he

insists that the seizure was not reasonable because it was not

governed by standardized criteria sufficient to satisfy Bertine.

We therefore consider in turn the second and third steps of the

community caretaker test.

                A.       Bona Fide Community Caretaker Function

       ¶15    The     community      caretaker            exception       to    the     warrant
requirement accounts for the multifaceted nature of police work.

Kramer,      315     Wis. 2d 414,        ¶32.        As    this    court       has    observed,

"Police officers wear many hats:                       criminal investigator, first

aid    provider,           social    worker,           crisis       intervener,             family

counselor,          youth        mentor     and           peacemaker,          to      name     a

few. . . .         They    are   society's          problem   solvers      when        no    other

solution is apparent or available."                       Matalonis, 366 Wis. 2d 443,
¶29 (quoting Ortiz v. State, 24 So. 3d 596, 607 n.5 (Fla. Dist.


                                                9
                                                                            No.        2015AP2052-CR



Ct.     App.     2009)        (Torpy,         J.,        concurring        and         concurring

specially)).           Although       a    court        assessing       whether        an    officer

acted for a bona fide community caretaker purpose "may consider

[the]    officer's       subjective          intent,"           this    step      of     the      test

ultimately turns on whether the officer can "articulate[] an

objectively          reasonable       basis"           for      exercising        a      community

caretaker      function.          Pinkard,          327      Wis. 2d 346,         ¶31       (quoting

Kramer, 315 Wis. 2d 414, ¶36).

       ¶16     In South Dakota v. Opperman, 428 U.S. 364 (1976), the

United       States     Supreme           Court        noted     that     "automobiles             are

frequently taken into police custody" by officers engaged in

community caretaker functions.                    Id. at 368.           The Court cited two

non-exclusive examples of situations where police officers often

take custody of vehicles:                    "[v]ehicle accidents," after which

officers take custody of vehicles "[t]o permit the uninterrupted

flow of traffic and in some circumstances to preserve evidence,"

and     vehicles       that     "violate           parking        ordinances,"              "thereby

jeopardiz[ing] both the public safety and the efficient movement
of    vehicular       traffic."            Id.     at    368-69.          In    short,           "[t]he

authority       of    police     to       seize        and     remove    from      the       streets

vehicles       impeding       traffic       or     threatening          public        safety       and

convenience      is     beyond    challenge"              in    the     community        caretaker

context.       Id. at 369.

       ¶17     Citing     Opperman's              subsequent            analysis            of     the

constitutionality of an inventory search, the primary issue in

that     case,       Asboth    asserts        that        the    officers'        interest          in
investigating him as a potential suspect in the bank robbery
                                                  10
                                                                        No.         2015AP2052-CR



predominated        over   any    bona       fide    community    caretaker            function

they performed by moving the car.                         Furthermore, focusing on

Opperman's         examples——impoundment             following        an    accident         and

impoundment         following     a     parking       ordinance       violation——Asboth

argues   that       the    officers      here       did   not   have       an       objectively

reasonable basis to tow his car from the storage facility to the

police station.

       ¶18    For multiple reasons, we conclude that the officers

possessed      a    bona   fide       community      caretaker        justification          for

impounding Asboth's car.                 First, if left unattended, the car

would have inconvenienced a private property owner and customers

at the storage facility by impeding the beneficial use of the

property.      Cf. United States v. Brown, 787 F.2d 929, 932-33 (4th

Cir.   1986)       (concluding        that    officers     "could      reasonably           have

impounded"         arrestee's     vehicle       "because        the    car          could   have

constituted a nuisance in the area in which it was parked").

Asboth's car obstructed the alley between the storage sheds,

making it difficult for larger vehicles to pass through.                                     The
car wholly or partially blocked several storage units, limiting

access for customers seeking to access their stored belongings.

Because the car was on a third-party's private property, any

expense for         removing     the obstruction           would have fallen to                a

private property owner uninvolved in the arrest.                                    By removing

the    car,        the    officers       immediately        remedied            a     potential

disruption created by Asboth's arrest at the private storage

facility, thus limiting the inconvenience to the property owner
and customers.
                                              11
                                                                    No.    2015AP2052-CR



       ¶19     Second, because Asboth was a suspect in a crime who

also allegedly violated the terms of his probation, he likely

faced a lengthy detention, and the possibility of a concomitant

lengthy abandonment of the car counseled in favor of its removal

from the premises.          See United States v. Coccia, 446 F.3d 233,

240     (1st    Cir.    2006)   (noting        that    "officers      properly     made

arrangements for the safekeeping of the [arrestee's] vehicle"

when    they    anticipated     that    he     "would      be   indisposed       for   an

indeterminate, and potentially lengthy, period").                          Impounding

rather than abandoning Asboth's car protected the vehicle and

its contents from potential theft or vandalism in his absence.

See United States v. Kornegay, 885 F.2d 713, 716 (10th Cir.

1989)    (citing       potential   "vandalism         or   theft"    as    one   factor

supporting impoundment).             Indeed, the impoundment's protective

function undermines Asboth's argument that the officers could

have towed the car somewhere other than the police station; his

car likely would have faced greater risk of vandalism or theft

if abandoned in a public place rather than on private property.
Although the later-discovered valuables were not in plain view

at the time the          officers towed the vehicle for impoundment,

Asboth no doubt would have been upset to learn that his personal

property was stolen from the car——regardless of whether officers

decided to abandon it at the storage facility or in some other

public place.

       ¶20     Finally, the registered owner of the car at the time

of Asboth's arrest was someone other than Asboth.                         With no one
else     immediately       present     claiming        ownership      or     otherwise
                                          12
                                                                      No.       2015AP2052-CR



available to take possession of the vehicle, the possibility

existed that officers would need to make arrangements to reunite

the car with its registered owner.                        Moreover, the protective

function of impoundment described above carries no less force

(and perhaps more) for an absent registered owner than it would

if officers knew that Asboth owned the car.

    ¶21     Collectively, the functions of removing an obstruction

inconveniencing          the     property's         users     and         protecting       an

arrestee's        property       during      his     detention,           combined       with

uncertainty       regarding         the    true     ownership       of      the    vehicle,

establish that the officers had a bona fide community caretaker

purpose when impounding Asboth's car.                   Because we identify these

objective       justifications       for    the     impoundment,         our    cases    make

clear that, even if the officers had an additional investigatory

interest     in    conducting        a     subsequent       inventory          search,    the

officers'       subjective     interests      do    not     render    the       warrantless

seizure     of     the     car      unconstitutional.               See     Kramer,       315

Wis. 2d 414,       ¶32    ("[T]he         officer    may     have    law        enforcement
concerns, even when the officer has an objectively reasonable

basis     for     performing         a     community       caretaker           function.").

Consequently, we now proceed to the third step of the community

caretaker test and assess the reasonableness of the seizure of

Asboth's car.

                     B.    Reasonableness of the Seizure

                               1.    Standard Criteria

    ¶22     Before        we     consider     the      public       interest        in    the
impoundment along with Asboth's competing privacy interest, we
                                             13
                                                                         No.        2015AP2052-CR



first address Asboth's argument that the seizure of his car was

unreasonable because it was not impounded according to standard

criteria.      In particular, he contends that in Bertine the United

States Supreme Court established that an impoundment will be

constitutionally valid only if governed by "standard criteria"

set forth in law enforcement procedures.                         See Bertine, 479 U.S.

at 375.

    ¶23     Asboth's argument turns on language at the end of the

Bertine   opinion.           Although       Bertine        generally     focused        on    the

constitutionality of an inventory search of Bertine's van, the

Court   concluded       by     addressing            Bertine's     argument         that     "the

inventory      search     of       his     van       was     unconstitutional           because

departmental regulations gave the police officers discretion to

choose between impounding his van and parking and locking it in

a public parking place."                 479 U.S. at 375.          Rejecting Bertine's

argument, the Supreme Court explained:                        "Nothing in Opperman or

[Illinois    v.   Lafayette,         462    U.S.        640   (1983),]     prohibits          the

exercise of police discretion so long as that discretion is
exercised according to standard criteria and on the basis of

something      other     than        suspicion          of      evidence       of      criminal

activity."     Id. (emphasis added).

    ¶24     A split exists among the federal courts of appeals

regarding      Bertine's           impact        on     impoundments           by      officers

performing     community        caretaker            functions.         Several        circuits

agree   with    Asboth,       to    varying          degrees,    that    law    enforcement

officers may constitutionally perform a warrantless community
caretaker    impoundment           only    if    standard       criteria       minimize       the
                                                14
                                                                         No.      2015AP2052-CR



exercise of their discretion.                  See United States v. Sanders, 796

F.3d 1241, 1248 (10th Cir. 2015) ("[I]mpoundment of a vehicle

located on private property that is neither obstructing traffic

nor       creating       an      imminent      threat       to     public         safety    is

constitutional only if justified by both a standardized policy

and        a    reasonable,                non-pretextual          community-caretaking

rationale."); Miranda v. City of Cornelius, 429 F.3d 858, 866

(9th Cir. 2005) ("The decision to impound must be guided by

conditions      which         'circumscribe         the   discretion         of   individual

officers'      in    a     way      that    furthers      the     caretaking        purpose."

(quoting Bertine, 479 U.S. at 376 n.7)); United States v. Petty,

367   F.3d      1009,         1012    (8th      Cir.      2004)     ("Some        degree    of

'standardized criteria' or 'established routine' must regulate

these police actions . . . ."); United States v. Duguay, 93 F.3d

346, 351 (7th Cir. 1996) ("Among those criteria which must be

standardized         are      the    circumstances        in     which   a     car    may   be

impounded.").4           Similarly, the District of Columbia Circuit has


      4
       See also People v. Torres, 116 Cal. Rptr. 3d 48, 56 (Ct.
App. 2010); Patty v. State, 768 So. 2d 1126, 1127 (Fla. Dist.
Ct. App. 2000); State v. Weaver, 900 P.2d 196, 199 (Idaho 1995);
People v. Ferris, 9 N.E.3d 1126, 1137 (Ill. App. Ct. 2014); Fair
v. State, 627 N.E.2d 427, 433 (Ind. 1993); State v. Huisman, 544
N.W.2d 433, 437 (Iowa 1996); State v. Fox, 2017 ME 52, ¶¶23-26,
157 A.3d 778; Commonwealth v. Oliveira, 47 N.E.3d 395, 398
(Mass. 2016); People v. Toohey, 475 N.W.2d 16, 22-23 (Mich.
1991); State v. Robb, 605 N.W.2d 96, 104 (Minn. 2000); State v.
Milliorn, 794 S.W.2d 181, 186 (Mo. 1990) (en banc); People v.
O'Connell, 591 N.Y.S.2d 641, 642 (App. Div. 1992); State v.
O'Neill, 2015-Ohio-815, ¶39, 29 N.E.3d 365 (Ct. App., 3d Dist.);
McGaughey v. State, 2001 OK CR 33, ¶44, 37 P.3d 130.


                                               15
                                                                     No.       2015AP2052-CR



held that, "if a standard impoundment procedure exists, a police

officer's failure to adhere thereto is unreasonable and violates

the Fourth Amendment."            United States v. Proctor, 489 F.3d 1348,

1349 (D.C. Cir. 2007).

       ¶25      In    contrast,   three      federal    circuits         do    not   afford

dispositive weight to the existence of standardized criteria or

to law enforcement officers' adherence thereto, instead treating

such criteria as, at most, one factor to consider when assessing

the Fourth Amendment reasonableness of a warrantless community

caretaker impoundment.5               The Fifth Circuit flatly rejects any

need       to     consider     standardized          criteria       as        part   of     a

reasonableness analysis.               See United States v. McKinnon, 681

F.3d 203, 208 (5th Cir. 2012) ("Since Opperman and Bertine, we

have focused our inquiry on the reasonableness of the vehicle

impoundment for a community caretaking purpose without reference

to     any      standardized      criteria.").          The     Third         Circuit     has

expressly recognized that a law enforcement officer's "decision

to impound a vehicle contrary to standardized procedures or even
in the absence of a standardized procedure should not be a per

se violation of the Fourth Amendment."                      United States v. Smith,

522 F.3d 305, 312 (3d Cir. 2008).

       ¶26      Most    persuasively,        the   First     Circuit       explained       in

United       States    v.   Coccia,    446    F.3d    233    (1st   Cir.       2006),     its


       5
       See also People v. Shafrir, 107 Cal. Rptr. 3d 721, 721-28
(Ct. App. 2010); Cannon v. State, 601 So. 2d 1112, 1115-16 (Ala.
Crim. App. 1992).


                                             16
                                                                  No.     2015AP2052-CR



reasons for "read[ing] Bertine to indicate that an impoundment

decision       made   pursuant    to    standardized      procedures       will      most

likely,       although    not   necessarily         always,    satisfy    the    Fourth

Amendment."       Id. at 238.         After noting the established principle

that "impoundments of vehicles for community caretaking purposes

are    consonant        with    the    Fourth    Amendment       so    long     as   the

impoundment decision was reasonable under the circumstances,"

the court added that Fourth Amendment "reasonableness analysis

does not hinge solely on any particular factor."                          Id. at 239.

Like any other factor, standard criteria do not provide "the

sine qua non of a reasonable impound decision":

            Virtually by definition, the need for police to
       function as community caretakers arises fortuitously,
       when unexpected circumstances present some transient
       hazard which must be dealt with on the spot.       The
       police cannot sensibly be expected to have developed,
       in advance, standard protocols running the entire
       gamut of possible eventualities. Rather, they must be
       free to follow "sound police procedure," that is to
       choose freely among the available options, so long as
       the option chosen is within the universe of reasonable
       choices.    Where . . . the police have solid, non-
       investigatory reasons for impounding a car, there is
       no need for them to show that they followed explicit
       criteria in deciding to impound, as long as the
       decision was reasonable.
Id. (quoting United States v. Rodriguez-Morales, 929 F.2d 780,

787    (1st    Cir.   1991)).         The   First    Circuit    then     proceeded     to

assess the reasonableness of the challenged impoundment.                         Id. at

239-41.

       ¶27     We agree with the First, Third, and Fifth Circuits

that    in      cases     involving         warrantless       community       caretaker
impoundments the fundamental question is the reasonableness of

                                            17
                                                                       No.    2015AP2052-CR



the seizure.        Accordingly, we hold that the absence of standard

criteria     does   not    by    default    render    a    warrantless          community

caretaker      impoundment         unconstitutional             under        the     Fourth

Amendment    reasonableness        standard.         Nor   does        law    enforcement

officers' lack of adherence to standard criteria, if they exist,

automatically render such impoundments unconstitutional.

       ¶28   The absence of a standard criteria requirement does

not, as Asboth suggests, imbue law enforcement officers with

"uncontrolled"       discretion     to     impound    vehicles          at    will     as   a

pretext for conducting investigatory inventory searches.                             As the

First   Circuit      observed      in    Coccia,     under       the     reasonableness

standard, "a police officer's discretion to impound a car is

sufficiently cabined by the requirement that the decision to

impound be based, at least in part, on a reasonable community

caretaking     concern     and    not    exclusively       on    'the        suspicion      of

criminal activity.'"            Coccia, 446 F.3d at 239 (quoting Bertine,

479 U.S. at 375).            The second step of Wisconsin's community

caretaker test requires law enforcement officers to establish
that the warrantless impoundment occurred pursuant to a bona

fide community caretaker purpose.                  Far from leaving officers

with    unlimited         discretion       to   impound,          Wisconsin's          test

authorizes law enforcement officers to conduct such warrantless

seizures only if they have "an objectively reasonable basis for

performing     a    community       caretaker      function."                Kramer,     315

Wis. 2d 414, ¶32.

       ¶29   Finally, our conclusion that Bertine does not mandate
adoption of or adherence to standard impoundment criteria for
                                           18
                                                                 No.     2015AP2052-CR



all circumstances should not discourage law enforcement agencies

from developing general impoundment procedures.                     "[A]doption of

a      standardized         impoundment        procedure . . . supplies              a

methodology by which reasonableness can be judged and tends to

ensure that the police will not make arbitrary decisions in

determining which vehicles to impound."                Smith, 522 F.3d at 312.

Indeed, adherence to sufficiently detailed standard criteria can

enhance the reasonableness of an impoundment by limiting the

exercise      of   discretion     and   encouraging     compliant       officers    to

identify and pursue the least-intrusive means of performing the

community caretaker function.             See United States v. Sharpe, 470

U.S.       675,    687   (1985)    (noting     that     courts      assessing      law

enforcement officers' actions must ask "not simply whether some

other alternative was available, but whether the police acted

unreasonably in failing to recognize or to pursue it").                         As we

discuss      further     below,   a     Wisconsin     court   may      consider    the

existence of, and officers' adherence to, standard criteria as a

relevant factor when assessing the reasonableness of a community
caretaker seizure.6




       6
       Although in this case we discuss the standard impoundment
criteria while assessing the reasonableness of the seizure,
nothing in this opinion forecloses Wisconsin courts from
considering officers' adherence to standard criteria when
determining whether officers exercised a bona fide community
caretaker function.


                                          19
                                                                             No.     2015AP2052-CR



                            2.    Reasonableness Inquiry

       ¶30   Under       the      third        step        of       Wisconsin's         community

caretaker      test,     we      evaluate       the    reasonableness              of    the     law

enforcement        officer's         exercise         of        a   bona     fide       community

caretaker function by "balancing [the] public interest or need

that is furthered by the officer's conduct against the degree of

and nature of the restriction upon the liberty interest of the

citizen."      Kramer, 315 Wis. 2d 414, ¶40.                         We generally consider

four factors:

       (1) the degree of the public interest and the exigency
       of the situation; (2) the attendant circumstances
       surrounding the seizure, including time, location, the
       degree of overt authority and force displayed; (3)
       whether an automobile is involved; and (4) the
       availability,   feasibility   and   effectiveness   of
       alternatives to the type of intrusion actually
       accomplished.
Id., ¶41 (quoting State v. Kelsey C.R., 2001 WI 54, ¶36, 243

Wis. 2d 422, 626 N.W.2d 777).

       ¶31   Taking the third factor first, we note that evaluation

of a car's impoundment necessarily involves an automobile.                                      This

factor    enters     the      analysis        because       "[i]n         some     situations     a

citizen has a lesser expectation of privacy in an automobile."

State v. Anderson, 142 Wis. 2d 162, 169 n.4, 417 N.W.2d 411 (Ct.

App.   1987)      (citing      New     York    v.     Class,        475     U.S.    106,    112-13

(1986)).     Although many of our recent community caretaker cases

have     raised     questions          regarding       the          appropriate         scope    of

warrantless       searches        of     homes,        see,         e.g.,     Matalonis,         366
Wis. 2d 443,       ¶2;      Pinkard,          327     Wis. 2d 346,           ¶1,     this       case


                                               20
                                                                           No.        2015AP2052-CR



involved        Asboth's          lesser        privacy        interest         in        his     car.

Therefore,       law    enforcement         officers           impounding       a     vehicle      as

community caretakers need not demonstrate the same extraordinary

public    interest        necessary        to    justify        a    warrantless           community

caretaker entry into the home.                        See Pinkard, 327 Wis. 2d 346,

¶56 (observing that, as compared to an automobile, "one has a

heightened privacy interest in preventing intrusions into one's

home").

      ¶32       Turning      to     the     public       interest        advanced           by    the

impoundment, we circle back to the effect of Asboth's arrest on

the storage facility's owner and customers:                               The public has a

significant interest in law enforcement officers seizing from

private     property         a    vehicle       that,     if     left    unattended,             would

inconvenience          the       property's       owner        and      users        by    impeding

beneficial use of the property and creating a potential hazard——

particularly when the officers are in lawful custody of the car.

See Brown, 787 F.2d 929, 932-33.                        One of this court's decisions

approving limited warrantless home entry by officers performing
a   community      caretaker         function         specifically        contemplates            the

possibility       of    officers          acting      for      the    similar         purpose      of

abating     a    nuisance.          See     Pinkard,        327      Wis. 2d 346,           ¶20   n.6

(quoting with approval United States v. Rohrig, 98 F.3d 1506,

1522-23 (6th Cir. 1996), which held that "officers' 'failure to

obtain a warrant [did] not render that entry unlawful' where

officers        entered      defendant's          home      to       'abat[e]         an    ongoing

nuisance by quelling loud and disruptive noise'" (alterations in
original)).        Although we reserve judgment on such a home-entry
                                                 21
                                                                          No.    2015AP2052-CR



question for a future case, we do not hesitate to recognize

that, even in the absence of the exigencies that often accompany

community caretaker actions, the law enforcement officers here

served a legitimate public interest by impounding an unattended

vehicle that inconvenienced a private business and its customers

and created a hazard by obstructing vehicle traffic through the

storage facility.

     ¶33    The     circumstances         surrounding          the    impoundment            also

reflect    the    seizure's        reasonableness.             If     abandoned         by   the

officers, the car would have intruded on private property owned

by a third party who had nothing to do with the arrest.                                      And

because    Asboth    was     already      under       arrest    at    the       time    of   the

impoundment, officers did not make an improperly coercive show

of   authority       to    effect       the     seizure.             See        Kramer,       315

Wis. 2d 414,      ¶43.        To    the    contrary,           the    seizure          actually

complied with the terms of both the Beaver Dam and the Dodge

County procedures governing impoundments.7                      The Beaver Dam policy

permitted    officers        to     impound       a    vehicle        held       "in     lawful
custody," and the officers took possession of the car after

lawfully arresting Asboth.                Additionally, the policy permitted

officers    to      decide     against        impoundment            if    a     "reasonable

alternative"      existed,        but   there     was    no     sensible         alternative

available here.           Providing more targeted guidance, the Dodge


     7
       Because we conclude that the seizure complied with both
departments' impoundment procedures, we need not decide which
procedures actually governed.


                                           22
                                                                 No.    2015AP2052-CR



County policy authorized deputies to tow a vehicle "[w]hen the

driver of a vehicle has been taken into custody by a deputy, and

the vehicle would thereby be left unattended."                    Again, officers

lawfully     arrested    Asboth,       and    it   was    reasonable     under   the

circumstances to infer that the person alone with the vehicle at

the storage facility was its driver.                The fact that the seizure

did   actually    comply      with     the     policies     of   the    acting   law

enforcement agencies indicates that this impoundment was not an

arbitrary decision but a reasonable exercise of discretion.                      See

Smith, 522 F.3d at 312.

      ¶34    Notably, the fact that both policies actually cabined

the officers' exercise of discretion also indicates that the

officers acted reasonably when seizing Asboth's car.                     In Clark,

the court of appeals disapproved of a policy permitting officers

to tow a vehicle if "[the] vehicle is to be towed and the

owner/driver is unable to authorize a tow."                      265 Wis. 2d 557,

¶6.    The    court     of   appeals    recognized        that   this   policy   was

"wholly unhelpful" because it "offer[ed] no insight into why or
when a vehicle may be seized," instead essentially "stat[ing]

that 'a vehicle is to be towed for safekeeping when a vehicle is

to be towed.'"     Id., ¶15.         Here, the Beaver Dam and Dodge County

policies avoided such circular reasoning by limiting impoundment

to situations where officers had custody of, respectively, the

vehicle itself or its driver.                Rather than allowing officers to

impound a vehicle at will any time the vehicle's driver was

unavailable, as the policy in Clark authorized, both policies in
this case permitted impoundment only as a natural consequence of
                                         23
                                                             No.        2015AP2052-CR



law   enforcement     action   that   would      otherwise    result        in    the

vehicle's abandonment.

      ¶35   Finally,    the    lack   of    realistic        alternatives          to

impoundment    further     reinforces      the     reasonableness          of     the

seizure.    Asboth was alone at the storage facility, so he did

not have a companion who could immediately take possession of

the car.      Admittedly, the officers did not offer Asboth the

opportunity to make arrangements for moving his car after his

arrest, but nothing required them to do so.              See United States

v. Arrocha, 713 F.3d 1159, 1164 (8th Cir. 2013) ("Nothing in the

Fourth    Amendment    requires   a   police      department       to     allow    an

arrested person to arrange for another person to pick up his car

to avoid impoundment and inventory." (quoting United States v.

Agofsky, 20 F.3d 866, 873 (8th Cir. 1994), which cited Bertine,

479 U.S. at 372)); see also Rodriguez-Morales, 929 F.2d at 786.

In fact, given the uncertainty arising from the fact that Asboth

was not the car's registered owner, taking possession of the car

to investigate its ownership may have been more reasonable than
outright returning the car to Asboth.8

      8
       The clear absence of feasible alternatives to impounding
Asboth's car further distinguishes this case from State v.
Clark, 2003 WI App 121, 265 Wis. 2d 557, 666 N.W.2d 112, in
which the court of appeals also held that the public interest in
towing an unlocked vehicle from the Milwaukee streets did not
outweigh the intrusion into the owner's privacy. Id., ¶27. An
officer investigating shots fired in the area ordered the
legally parked but unlocked vehicle towed "to ensure that the
vehicle itself and any property inside the vehicle would not be
stolen."    Id., ¶23.    The court of appeals held that the
community caretaker exception did not apply because the officer
could have "(1) locked the vehicle and walked away; [or] (2)
                                                     (continued)
                                      24
                                                                           No.    2015AP2052-CR



       ¶36     Considering all of these factors together, we conclude

that law enforcement's removal of an unattended car that would

otherwise create a potential hazard while also inconveniencing

owners and users of private property9 outweighed Asboth's lesser

privacy interest in that car.                          Because the officers advanced

that       public    interest        in    pursuit       of     a   bona   fide     community

caretaker      function,        we    hold    that       the    warrantless       seizure    of

Asboth's car after his arrest was constitutionally reasonable

under the Fourth Amendment.

                                      IV.    CONCLUSION

       ¶37     "The       touchstone          of        the     Fourth       Amendment       is

reasonableness."          State       v.    Tullberg,          2014   WI   134,     ¶29,    359

Wis. 2d 421, 857 N.W.2d 120 (quoting Florida v. Jimeno, 500 U.S.

248, 250 (1991)).            Applying Wisconsin's test for the community

caretaker           exception        to     the        Fourth       Amendment's       warrant

requirement,         we   conclude         that    law    enforcement       officers       acted



attempted to contact the owners of the vehicle in light of his
belief that the vehicle or its contents may be stolen."   Id.,
¶27.
       9
       The array of factors demonstrating the reasonableness of
the officers' decision to impound Asboth's car defeats any
argument   that  this   opinion   delineates  a   per  se   rule
"justify[ing] the seizure of every vehicle after its driver has
been arrested."     Dissent, ¶76.      As with any warrantless
community caretaker search or seizure, law enforcement officers
acting as bona fide community caretakers may impound an arrested
person's vehicle without a warrant only if the facts establish a
countervailing public interest in conducting the seizure that
outweighs any infringement on the arrested person's liberty
interest.


                                                  25
                                                    No.    2015AP2052-CR



reasonably   when   seizing   Asboth's   vehicle   for    impoundment.

Although we conclude that the officers here complied with both

relevant departmental impoundment policies, we also hold that

Bertine does not mandate such adherence to satisfy the Fourth

Amendment's reasonableness standard.     Accordingly, we affirm the

decision of the court of appeals.

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

affirmed.




                                 26
                                                                     No. 2015AP2052-CR.awb


       ¶38       ANN WALSH     BRADLEY, J.         (dissenting).            The majority

bucks the nationwide trend when it determines that the Fourth

Amendment to the United States Constitution does not require

that police follow standardized procedures during a community

caretaker impoundment.                Adopting the minority rule followed by

three federal circuits, it reasons that standardized procedures

are    unnecessary           because    police      discretion        is     sufficiently

limited         by   the   requirement     that    impoundments        be    based     on    a

reasonable community caretaker concern.

       ¶39       Compounding     its    misdirection,        the     majority     further

errs       by    expanding      an     already     bloated       community      caretaker

exception to the Fourth Amendment's warrant requirement.                                    It

appears that yet again this court's "expansive conception of

community        caretaking     transforms        [it]    from   a   narrow     exception

into a powerful investigatory tool."                      State v. Matalonis, 2016

WI    7,    ¶106,      366    Wis. 2d 443,       875     N.W.2d 567        (Prosser,    J.,

dissenting).

       ¶40       Contrary to the majority, I would follow the national
trend as illustrated by the well-reasoned approach of the Tenth

Circuit in U.S. v. Sanders, 796 F.3d 1241 (2015).                           It determined

that "impoundment of a vehicle located on private property that

is neither obstructing traffic nor creating an imminent threat

to public safety is constitutional only if justified by both a

standardized policy and a reasonable, non-pretextual community-

caretaking rationale."               Sanders, 796 F.3d at 1248.

       ¶41       Applying     the     Sanders     test,     I    conclude      that     the
warrantless impoundment of Asboth's vehicle violated his Fourth

                                             1
                                                                  No. 2015AP2052-CR.awb


Amendment rights.           His vehicle neither obstructed traffic nor

created an imminent threat to public safety.                      Additionally, the

standardized policies here fail to place any meaningful limits

on    police      discretion      and      the     asserted     rationale          for   the

community caretaker impoundment is unreasonable.

      ¶42   Accordingly, I respectfully dissent.

                                              I

      ¶43   The Fourth Amendment to the United States Constitution

provides that "[t]he right of the people to be secure in their

persons,    houses,        papers,      and       effects,    against       unreasonable

searches and seizures, shall not be violated, and no Warrants

shall     issue,     but    upon      probable        cause. . . ."             Community

caretaker      impoundments          are      an     exception        to     the     Fourth

Amendment's warrant requirement.                   State v. Pinkard, 2010 WI 81,

¶14, 327 Wis. 2d 346, 785 N.W.2d 592.                      Given the importance of

the     privacy     interests      involved,         this     exception       should      be

narrowly construed.            See    Arizona v. Gant, 556 U.S. 332, 345

(2009) (instructing that a motorist's privacy interest in his
vehicle     is      "important          and       deserving      of        constitutional

protection.").

      ¶44   In     Gant,    the    United         States    Supreme    Court       expanded

motorists' privacy rights when it narrowed its prior decision in

New York v. Belton, 453 U.S. 454 (1981).                      Belton had previously

been read so broadly as to authorize a vehicle search incident

to every arrest of any occupant of a vehicle.                              See Gant, 556

U.S. at 343.



                                              2
                                                                  No. 2015AP2052-CR.awb


      ¶45   The    Gant     court    explained       that    "[c]onstruing        Belton

broadly to allow vehicle searches incident to any arrest would

serve no purpose except to provide a police entitlement, and it

is   anathema to the Fourth Amendment to permit a warrantless

search on that basis."             Id. at 347.        Accordingly, Gant limited

searches incident to arrest to two circumstances:                           either when

the arrestee is unsecured and within reaching distance of the

passenger compartment at the time of the search or when it is

reasonable to believe that evidence relevant to the crime of

arrest might be found in the vehicle.                 Id. at 343.

      ¶46   In order to address the same concerns in the context

of vehicle impoundments, the national trend has been to adopt a

two-part test that resembles Gant's narrowing of Belton.                              This

test,    like    the    test    adopted    in   Gant,       prioritizes      motorists'

privacy rights over deference to police discretion.                           It limits

police   discretion       regarding       impoundments       by   requiring      both    a

standardized      policy       governing    impoundment        and     a   "reasonable,

non-pretextual         community-caretaking       rationale."              Sanders,    796
F.3d at 1248.

      ¶47   The        question     of     whether      a     community       caretaker

impoundment of a vehicle must be governed by a standardized

policy is an issue of first impression in Wisconsin.                           However,

the United States Supreme Court has instructed that the exercise

of police discretion must be "exercised according to standard

criteria and on the basis of something other than suspicion of

evidence    of    criminal        activity."         Colorado     v.       Bertine,    479
U.S. 367, 375 (1987).

                                            3
                                                             No. 2015AP2052-CR.awb


       ¶48   A majority of federal and state appellate courts that

have   addressed   this     issue   have    concluded      that   a     warrantless

community caretaker impoundment is constitutional only if there

exists standardized criteria limiting police discretion.                        See,

e.g., United States v. Sanders, 796 F.3d 1241, 1248 (10th Cir.

2015); United States v. Proctor, 489 F.3d 1348, 1353-54 (D.C.

Cir. 2007); Miranda v. City of Cornelius, 429 F.3d 858, 866 (9th

Cir. 2005); United State v. Petty, 367 F.3d 1009, 2012 (8th Cir.

2004);    United   States    v.   Duguay,    93   F.3d 346,       351    (7th   Cir.

1996); Patty v. State, 768 So. 2d 1126, 1127 (Fla. Dist. Ct.

App. 2000); State v. Weaver, 900 P.2d 196, 199 (Idaho 1995);

People v. Ferris, 9 N.E.3d 1126, 1137 (Ill. Ct. App. 2014); Fair

v. State, 627 N.E.2d 427, 433 (Ind. 1993); State v. Huisman, 544

N.W.2d 433, 437 (Iowa 1996); Com. v. Oliveira, 47 N.E.3d 395,

398    (Mass.   2016);   State    v.   Robb,    605   N.W.2d 96,        104   (Minn.

2000); State v. Milliorn, 794 S.W.2d 181, 186 (Mo. 1990); State

v. Filkin, 494 N.W.2d 544, 549 (Neb. 1993); People v. O'Connell,

188 A.D.2d 902, 903 (N.Y. App. Div. 1992); State v. O'Neill, 29
N.E.3d 365, 374 (Ohio Ct. App. 2015); McGaughey v. State, 37

P.3d 130, 142–43 (Okla. Crim. App. 2001).

       ¶49   Yet, the majority follows the minority view of three

federal      circuits,      determining        that   in     cases        involving

warrantless community caretaker impoundments that standardized

policies are not necessary.             United States v. McKinnon, 681

F.3d 203, 208 (5th Cir. 2012); United States v. Smith, 522 F.3d

305, 312 (3d Cir. 2008); United States v. Coccia, 446 F.3d 233,
238 (1st Cir. 2006).          It reasons that standardized procedures

                                        4
                                                                     No. 2015AP2052-CR.awb


are     unnecessary       because       police       discretion       is        sufficiently

limited     by   the     requirement         that    impoundments         be    based     on    a

reasonable community caretaker concern.

      ¶50    According to the majority, "the fundamental question

is the reasonableness of the seizure."                       Majority op., ¶27.                It

contends that the absence of standard criteria does not "imbue

law     enforcement       officers       with       'uncontrolled'         discretion          to

impound     vehicles          at     will     as     a    pretext      for        conducting

investigatory searches."                Majority op., ¶28.            However, as set

forth in more detail below, that is exactly what happened here.

      ¶51    The       Tenth         Circuit's        decision       in        Sanders         is

illustrative of the national trend.                       In Sanders, for "reasons

not   articulated        in    any    policy,       [police]   impounded          a   vehicle

lawfully parked in a private lot after arresting its driver as

she   exited     a    store."         Id.     at    1242.      The    police       made    "no

meaningful attempt to allow the driver, her companion, or the

owner of the parking lot to make alternative arrangements."                               Id.

      ¶52    Sanders acknowledged that "[t]he authority of police
to seize and remove from the streets vehicles impeding traffic

or    threatening        public        safety       and     convenience          is     beyond

challenge."        Id. at 1244 (quoting South Dakota v. Opperman, 428

U.S. 364, 368-69 (1976)).                   It further explained that Opperman

and   Bertine        establish       "two    different,      but     not       inconsistent,

rules regarding when impoundments are constitutional."                                  Id. at

1245.       Opperman          establishes          that   warrantless           impoundments

required    by     the   community          caretaking      functions      of     protecting
public safety and promoting the efficient movement of traffic

                                               5
                                                                           No. 2015AP2052-CR.awb


are constitutional.               Id.       Bertine establishes that warrantless

impoundments           are    unconstitutional             if     justified       by     either    a

"pretext for a criminal investigation or not exercised according

to standardized criteria" that limits police discretion.                                   Id.

         ¶53    After        surveying       United        States        Supreme       Court     and

federal circuit precedent, Sanders concluded that "impoundment

of   a       vehicle     located       on    private        property       that     is    neither

obstructing traffic nor creating an imminent threat to public

safety         is    constitutional           only         if     justified        by     both    a

standardized policy and a reasonable, non-pretextual community-

caretaking rationale."                Id. at 1248.

         ¶54    Deviating        from       the    nationwide        trend,       the     majority

limits motorists' privacy rights.                          Contrary to the majority, I

would follow the national trend protecting motorists' privacy

rights         under     the     Fourth           Amendment        and     require        both    a

standardized           policy        that     limits        police       discretion        and     a

reasonable community caretaker rationale.

                                                   A
         ¶55    Applying       the    test        set    forth    above,     I     turn    to    the

question        of     whether       the    policies       in     this    case     sufficiently

limited        officer       discretion       to        impound    vehicles       from    private

lots.1




         1
       The parties disagree regarding which policy governed the
impoundment, but as set forth below, this issue is not
dispositive to my analysis because neither policy sufficiently
limits police discretion.


                                                   6
                                                            No. 2015AP2052-CR.awb


     ¶56       The Beaver Dam Police Department policy provides no

limitations.       In essence, it states that any officer having a

vehicle in lawful custody may impound that vehicle:

     Any officer having a vehicle in lawful custody may
     impound said vehicle.    The officer will have the
     option not to impound said vehicle when there is a
     reasonable alternative; however, the existence of an
     alternative does not preclude the officer's authority
     to impound.
     ¶57       Likewise, the Dodge County Sheriff's Department policy

governing impoundment provides that deputies are authorized to

tow when "the driver . . . has been taken into custody by a

deputy,    and    the    vehicle   would    thereby   be    left   unattended."

Additionally, it states that unless otherwise indicated, "the

deputy always has the discretion to leave the vehicle at the

scene    and    advise   the   owner   to   make   proper    arrangements    for

removal."2



     2
         The sheriff's department policy states in relevant part:

     Deputies of the Dodge County Sheriff's Department are
     authorized to arrange for towing of motor vehicles
     under the following circumstances:

     When any vehicle has been left unattended upon a
     street or highway and is parked illegally in such a
     way as to constitute a definite hazard or obstruction
     to the normal movement of traffic;

                                       . . .

     When the driver of a vehicle has been taken into
     custody by a deputy, and the vehicle would thereby be
     left unattended;

                                       . . .

                                                                    (continued)
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                                                                   No. 2015AP2052-CR.awb


      ¶58    Having determined that standardized policies are not

constitutionally required, the majority nevertheless considers

the   policies       in    the    context       of     whether     the      seizure    was

reasonable.

      ¶59    According to the majority, both policies cabined the

officers'     discretion          because       they      limit    impoundment          "to

situations     where       officers   had       custody    of,    respectively,         the

vehicle     itself    or    its   driver."           Majority     op.,      ¶34.      After

concluding     that       the   standardized         policies     in   this    case    are

sufficient, the majority determines that "[t]he fact that the

seizure did actually comply with the policies of the acting law

enforcement agencies indicates that this impoundment was not an

arbitrary    decision       but   a   reasonable        exercise       of   discretion."

Majority op., ¶33.

      ¶60    The majority errs because neither policy limits police

discretion.      First, it is unclear how the Beaver Dam policy,

which allows impoundments whenever officers have custody of a

vehicle, provides any limitation at all.                         How can the police
impound a vehicle without having custody of it?                             The policy's

directive is circular.


      When removal is necessary in the interest of public
      safety because of fire, flood, storm, snow or other
      emergency reasons;

                                        . . .

      Unless otherwise indicated, the deputy always has the
      discretion to leave the vehicle at the scene and
      advise the owner to make proper arrangement for
      removal.


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                                                                   No. 2015AP2052-CR.awb


       ¶61    Second,    the     majority       errs   because      the   Dodge   County

policy limits police discretion only when a driver is not in

custody.      The Fourth Amendment's protections against warrantless

seizures of property continue to apply after a driver has been

arrested.           Indeed,    the       question       of    whether       standardized

procedures are required has arisen in such seminal cases as

Bertine only after the defendant has been arrested.                           See, e.g.,

Bertine, 479 U.S. at 368-369.

       ¶62    The majority misses the point because the question in

this case is whether the policies limit police discretion in

determining whether to impound a vehicle after a defendant has

been    arrested.         Both     policies       give       the   police     unfettered

discretion to impound a vehicle when a driver such as Asboth has

been arrested.

       ¶63    The purpose of standardized criteria is to establish

why    or    when   a   vehicle    may    be    taken     into     custody,    but     here

neither policy offers any guidance on this question.                           In State

v. Clark, the court of appeals addressed the Milwaukee Police
Department towing policy, explaining that when a policy offers

no insight into why or when a vehicle may be seized, it is

"wholly unhelpful."           2003 WI App 121, ¶15, 265 Wis. 2d 557, 666

N.W.2d 112.

       ¶64    Neither policy limits officer discretion "in deciding

whether to impound a vehicle, leave it at the scene, or allow

the arrestee to have it privately towed."                      Sanders, 796 F.3d at

1250.        In   contrast,    the   policy       in     Bertine    "related      to    the
feasibility and appropriateness of parking and locking a vehicle

                                            9
                                                                             No. 2015AP2052-CR.awb


rather than impounding it."                       Bertine, 479 U.S. at 378.                 No such

detail governs officer discretion here.

      ¶65    Accordingly, the policies in this case, as in Sanders,

"insufficiently limited officer discretion to impound vehicles

from private lots."               Sanders, 796 F.3d at 1250.

                                                    B

      ¶66    Having determined that the impoundment was not done in

accordance           with         constitutionally               sufficient          standardized

policies,        I    could       end    my   analysis          here    because      a    community

caretaker impoundment is unconstitutional without standardized

procures that limit police discretion.                             The majority, however,

concludes        that       the     police        reasonably           effected      a    community

caretaker        impoundment            of    Asboth's      car.          Majority        op.,     ¶1.

Accordingly, I turn now to the question of whether the police

conduct     in       this   case        was   a    valid    exercise         of    the    community

caretaker authority.

      ¶67    The       majority         concludes       that      there      are    a     number   of

"objective justifications for the                          impoundment" that establish
the   police          had     a    bona       fide      community         caretaker        purpose.

Majority     op.,       ¶21.            Initially,         it     contends         that    if    left

unattended, Asboth's car would have "inconvenienced a private

property owner and customers at the storage facility by impeding

the beneficial use of the property."                             Majority op., ¶18.              Yet,

the   hearing         testimony         demonstrates        that        it   was     possible      to

"drive around" Asboth's vehicle, contradicting this rationale.

Beneficial use of the property was not impeded because Asboth's
vehicle was not blocking traffic through the storage facility.

                                                   10
                                                                        No. 2015AP2052-CR.awb


       ¶68    Because of the lack of evidence that the vehicle was

obstructing traffic at the storage facility, the majority offers

a number of additional rationalizations.                            First, it advances

that "any expense for removing the obstruction would have fallen

to a private property owner uninvolved in the arrest."                               Majority

op.,   ¶18.         Next,    it    asserts     that       the    police       protected    the

vehicle and its contents from theft and that "Asboth no doubt

would have been upset to learn that his personal property was

stolen from the car."              Majority op., ¶19.              Finally, it contends

that because the registered owner of the vehicle was someone

other than Asboth, police were faced with the possibility of

needing      to    make     arrangements       to      return     the     vehicle     to   its

registered owner.           Majority op., ¶20.

       ¶69    The hearing testimony demonstrates that each of these

proffered         rationales      is   purely          speculative.           None   of    the

officers contacted the storage facility to see whether the owner

wanted the car removed nor did they contact the registered owner

of the vehicle.             Additionally, none of the officers recalls
speaking with Asboth about whether he could arrange to have

someone move the vehicle.

       ¶70    After       dispensing     with          the      majority's      speculative

justifications for its conclusion that this was a bona fide

community         caretaker       function,        I    turn     now     to    examine     the

reasonableness of the warrantless impoundment.                           A reasonableness

analysis calls for consideration of both "the degree of public

interest and the exigency of the situation."                            State v. Pinkard,



                                              11
                                                                     No. 2015AP2052-CR.awb


2010 WI 81, ¶41, 327 Wis. 2d 346, 785 N.W.2d 592 (quoting In re

Kelsey C.R., 2001 WI 54, ¶36, 243 Wis. 2d 422, 626 N.W.2d 777).

    ¶71     In     its        analysis    of      reasonableness,           the     majority

repeats    the     same       justifications       offered     as     support       for   its

conclusion       that     the    impoundment       was   a     bona     fide       community

caretaker function.              Essentially, it contends that the public

has a significant interest in impounding a vehicle that would

"inconvenience          the     property's     owner     and        users    by     impeding

beneficial use of the property and creating a potential hazard."

Majority op., ¶32.

    ¶72     Even if the majority could sufficiently explain how

Asboth's vehicle posed a potential hazard to public safety, it

errs in stating that it need not consider the exigency of the

situation.        Id.      Acknowledging that this was not an emergent

situation, the majority simply omits this consideration from its

analysis.     Id.       Instead, it considers only the public interest,

which does not justify the seizure because Asboth's vehicle was

parked on private property and there was testimony that there
was room to drive around it.

    ¶73     Finally, I turn to the majority's argument that "the

lack of realistic alternatives to impoundment further reinforces

the reasonableness of the seizure."                  Majority op., ¶35.              As set

forth     above,    however,        no    alternatives         to     impoundment         were

considered so there is no evidence as to whether there were

realistic    alternatives          to    impoundment.          Again,       this    is    pure

speculation on the part of the majority.



                                             12
                                                             No. 2015AP2052-CR.awb


    ¶74    Considering the facts of this case, it appears that

the impoundment may have been a pretext for an investigatory

police motive.      See, e.g., Sanders, 796 F.3d at 1245 (explaining

that Bertine      establishes that impoundment is unconstitutional

where police discretion is "exercised as a pretext for criminal

investigation.").

    ¶75    Just    before    the    vehicle    was   impounded,      Asboth    was

arrested on a probation warrant.              The car was towed to a city

police impound lot, where it was subsequently searched.                     During

the search, police removed and held all items of apparent value,

including a pellet gun that was found in the vehicle.                         The

officers conducting the search testified that they considered it

to be an inventory search, and conducted it according to their

inventory search procedures.            However, one officer conducting

the search filled out a form indicating that it was done to

obtain   "evidence,"       rather   than     the   other    possible    purposes

listed on the form, including "abandoned," "parked in traffic"

or "safekeeping."
    ¶76    Contrary to the majority, I conclude that the lack of

a compelling public safety need to move Asboth's car suggests

that the police were motivated by the investigation of the armed

robbery in which he was a suspect.             Not only are the rationales

offered by the majority hypothetical, but they could be applied

to virtually any vehicle, parked anywhere, at any time.                        In

Clark, this court rejected a policy that "might lead to the

police   towing    every    unlocked     vehicle     on    the   street."     265
Wis. 2d 557,      ¶16.      Likewise,    the   majority's        conclusion   may

                                        13
                                                                              No. 2015AP2052-CR.awb


justify the seizure of every vehicle after its driver has been

arrested.

       ¶77    Thus,       I    conclude         that     the      impoundment            of    Asboth's

vehicle was unconstitutional.                     His vehicle was parked on private

property,      was    not          obstructing      traffic           and    posed       no    imminent

threat to public safety.                   Under such circumstances, in order to

survive       constitutional              scrutiny,          the          impoundment         must   be

justified      by    both          a    standardized         policy         that     limits      police

discretion and a reasonable, non-pretextual community-caretaking

rationale.        Here there was neither.

                                                       II

       ¶78    Ultimately, I comment on what I and other members of

this court have repeatedly warned:                              a broad application of the

community         caretaker            doctrine    "raises            the     specter         that   the

exception         will        be       misused     as       a     pretext           to     engage    in

unconstitutional searches that are executed with the purpose of

acquiring evidence of a crime."                     Pinkard, 327 Wis. 2d 346, ¶75.

       ¶79    I    have       previously         voiced         the       concern    that      "today's
close call will become tomorrow's norm."                                   Id., ¶66.          Over the

years, that is exactly what has happened.                                   In case after case,

this exception to the Fourth Amendment's warrant requirement has

expanded      well       beyond         the     limits      of        a    bona     fide      community

caretaker function that is "totally divorced from the detection,

investigation,           or        acquisition      of       evidence          relating         to   the

violation of a criminal statute."                           State v. Kramer, 2009 WI 14,

¶23,    315       Wis. 2d 414,            759     N.W.2d 598              (internal      quotes      and
citations omitted).

                                                  14
                                                                            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     police         can    articulate           "a   hypothetical     community

need."            Matalonis,         366        Wis. 2d 443,             ¶106   (Prosser,      J.,

dissenting).             The majority embraces the State's hypothetical.

It reasons that the police served a legitimate public interest

by impounding a vehicle that inconvenienced a private business

and its customers and created a hazard by obstructing vehicle

traffic through the storage facility.                             Majority op., ¶32.

       ¶81    Not only has the majority opinion lowered the floor by

deviating         from        the    national             trend      requiring      standardized

criteria, it also has opened a trap door so that the community

caretaker exception may become bottomless.                                  If the community

caretaker         impoundment        of        Asboth's        vehicle     parked    on   private

property      can        be   justified          due      to    inconvenience,       would     any

warrantless seizure be unreasonable in this context?                                      When an

exception to the Fourth Amendment becomes the rule, the privacy

rights       of     motorists             do     not       receive        the    constitutional
protections they deserve.

       ¶82    Accordingly, I respectfully dissent.

       ¶83    I     am    authorized            to   state        that    Justice    SHIRLEY    S.

ABRAHAMSON joins this dissent.




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    No. 2015AP2052-CR.awb




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