July 24, 2017 – The Wisconsin Supreme Court has ruled (5-2) that police did not need a warrant to impound a man’s vehicle, resulting in evidence of a bank robbery, because the vehicle was blocking access to storage units and could have been vandalized.
That is, police had a justification – the community caretaker exception to the warrant requirement – and acted reasonably when choosing to impound the car.
Kenneth Asboth Jr. was a suspect in an armed robbery in Beaver Dam and police had an outstanding warrant for his arrest. In 2012, police received a tip that Asboth was located at a private storage facility outside of Beaver Dam, in Dodge County.
County and city law enforcement responded. Police arrived to find Asboth reaching in the back seat of a vehicle that was parked in the alley separating private storage units.
After his arrest, police impounded the car and inventoried its contents under policy and procedure for vehicle impoundments. Under a false floor in the trunk, police found a pellet gun that resembled the handgun used in a bank robbery in Beaver Dam.
Asboth, charged with armed robbery, filed a motion to suppress the evidence obtained from the vehicle, arguing that police violated his right against unreasonable search and seizures. The circuit court denied his motion and he ultimately pled no contest.
The appeals court affirmed the circuit court’s ruling on suppression. And in State v. Asboth, 2017 WI 76 (July 7, 2017), a 5-2 majority affirmed the appeals court.
Police had a Community Caretaker Purpose
The majority concluded that police “possessed a bona fide community caretaker justification” for impounding the car and thus were not required to obtain a warrant despite the constitutional Fourth Amendment right against unreasonable seizures.
The community caretaker exception may apply if police conduct searches or seize property, without a warrant, if they are doing so for some reason unrelated to the investigation of a crime or the acquisition of evidence related to a crime.
In this case, police were justified in seizing the vehicle because it was blocking storage units and there was a potential for the car to be vandalized, the majority explained.
“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,” wrote Justice Rebecca Bradley, noting the car partially obstructed an alley between storage units and blocked or limited access to several storage units.
Justice R. Bradley also explained that Asboth likely faced a lengthy detention. Thus, the vehicle would just be sitting there for an extended amount of time. In addition, the majority noted that impounding the vehicle protected it from vandalism or potential theft.
“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,” Justice R. Bradley wrote.
Bradley noted that the vehicle’s owner was not immediately apparent to police because Asboth bought the car but did not register it with the department of motor vehicles. Thus, officers may have believed the car would need to be returned to its true owner.
“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,” she wrote.
Standard Criteria
Asboth argued that under Colorado v. Bertine, 479 U.S. 367 (1987), the seizure was unconstitutional because police exercised too much discretion in deciding whether to impound the vehicle and did not follow “standard criteria” in making the choice.
But the majority noted that federal circuits have split on whether Bertine requires impoundments to follow standard criteria to minimize the exercise of discretion.
“We agree with the First, Third, and Fifth Circuits that in cases involving warrantless community caretaker impoundments the fundamental question is the reasonableness of the seizure,” R. Bradley noted. “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.”
The majority concluded that the impoundment was reasonable. Officers followed department policy, and even if there was some discretion, the officers acted reasonably.
“[W]e 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 property outweighed Asboth’s lesser privacy interest in that car,” Bradley wrote.
Dissent
Justice Ann Walsh Bradley wrote a dissenting opinion, joined by Justice Shirley Abrahamson, concluding the warrantless impoundment was unconstitutional.
“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,” she wrote.
A.W. Bradley would have Wisconsin follow the “national trend” as explained by the U.S. Court of Appeals for 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,” Justice A.W. Bradley wrote.
In this case, law enforcement did not meet the Sanders test, the dissenters concluded, because the vehicle did not obstruct traffic or create 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,” Justice A.W. Bradley wrote.
