State v. Asboth, 2015AP2052-CR

Citation898 N.W.2d 541,376 Wis.2d 644,2017 WI 76
Decision Date06 July 2017
Docket NumberNo. 2015AP2052-CR,2015AP2052-CR
Parties STATE of Wisconsin, Plaintiff-Respondent, v. Kenneth M. ASBOTH, Jr., Defendant-Appellant-Petitioner.
CourtUnited States State Supreme Court of Wisconsin

376 Wis.2d 644
898 N.W.2d 541
2017 WI 76

STATE of Wisconsin, Plaintiff-Respondent,
Kenneth M. ASBOTH, Jr., Defendant-Appellant-Petitioner.

No. 2015AP2052-CR

Supreme Court of Wisconsin.

Oral Argument: April 19, 2017
Opinion Filed: July 6, 2017

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.

898 N.W.2d 543


376 Wis.2d 649

¶1 Wisconsin courts have long applied a community caretaker exception to the warrant requirement under the Fourth Amendment to the United States Constitution. In this case, Kenneth M. Asboth, Jr., asks us to decide whether law enforcement officers' warrantless seizure of his car was a reasonable exercise of a bona fide community caretaker function. He also asks us to determine whether Colorado v. Bertine , 479 U.S. 367, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987), requires officers to follow "standard criteria" when conducting a community caretaker impoundment. We hold that Bertine does not mandate adherence to standard criteria, and because we further conclude that officers reasonably effected a community caretaker impoundment of Asboth's car, we affirm the decision of the court of appeals.


¶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,

376 Wis.2d 650

complying with the command, confirmed his identity after the deputy arrested him. Officers from Beaver Dam soon arrived at the storage facility, and Asboth was placed in the back seat of a squad car until they could transport him for questioning.

¶4 After Asboth's arrest, his car remained parked at the storage facility. None of the arresting officers asked Asboth if he could arrange to have the car moved. Although the car sat in the middle of the alley between two storage sheds, space remained available for a vehicle to maneuver around it and drive through the alley. The car, however, entirely blocked access to one storage unit, and it impeded access to several others. When the officer ran a check of the car's registration, it identified the car's owner as not Asboth but a different person with a City of Madison address.1 Rather than abandoning the car on private property, or contacting the storage facility's owner about it, the officers chose to impound the car.

¶5 Both the Beaver Dam Police Department and the Dodge County Sheriff's Department had policies for officers to follow when deciding whether to impound a vehicle. The Beaver Dam policy provided:

Any officer having a vehicle in lawful custody may impound said vehicle. The officer will have the option not to impound said vehicle when there is a reasonable alternative; however, the existence of an alternative does not preclude the officer's authority to impound.
376 Wis.2d 651

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:
898 N.W.2d 544
When any vehicle has been left unattended upon a street or highway and is parked illegally in such a way as to constitute a definite hazard or obstruction to the normal movement of traffic;


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


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


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

¶6 Because the impound lot at the Dodge County Sheriff's Department was full, the officers and deputies agreed to tow the car to the Beaver Dam police station. Consistent with police department procedures, officers conducted an inventory search of the seized vehicle at the police station. The search turned up several items that the department held for safekeeping: a video game system, a cell phone, an MP3 player, keys, and an orange water bottle containing green leafy material. In the spare tire compartment

376 Wis.2d 652

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 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....
376 Wis.2d 653
(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.
898 N.W.2d 545

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, 372 Wis.2d 185, 2016 WL 5416012 (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

376 Wis.2d 654

court's denial of the motion to suppress. Id. , ¶ 45. Asboth petitioned this court for review, again limiting his argument to the constitutionality of the seizure, and we granted his petition.


¶10 We review an order granting or denying a motion to suppress evidence as a question of constitutional fact, which requires a two-step analysis. State v. Matalonis , 2016 WI 7, ¶ 28, 366 Wis.2d 443, 875 N.W.2d 567, cert. denied , ––– U.S. ––––, 137 S.Ct. 296, 196 L.Ed.2d 215. "First, we review the circuit court's findings of historical fact under a deferential standard, upholding them unless...

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  • State v. Smith, 2015AP756-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • January 9, 2018
    ...Constitution in accordance with United States 379 Wis.2d 98Supreme Court interpretations of the Fourth Amendment." State v. Asboth, 2017 WI 76, ¶11, 376 Wis. 2d 644, 898 N.W.2d 541. Thus, we apply Rodriguez 's interpretation of the Fourth Amendment. ¶13 There is no dispute that the initial ......
  • State v. Brooks
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    ...not be 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 omit......
  • Minett v. Overwachter
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    ...turns on whether the officer can articulate[ ] an objectively reasonable basis for exercising a community caretaker function." State v. Asboth, 2017 WI 76, ¶ 15, 376 Wis. 2d 644, 898 N.W.2d 541.In this case, defendant says that he was concerned that plaintiff might be incapacitated by alcoh......
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    • June 15, 2022 suppress evidence presents a question of constitutional fact, which requires a two-step analysis on appellate review. State v. Asboth , 2017 WI 76, ¶10, 376 Wis. 2d 644, 898 N.W.2d 541. "First, we review the circuit court's findings of historical fact under a deferential standard, uphold......
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1 books & journal articles
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    • University of Pennsylvania Law Review Vol. 171 No. 1, December 2022
    • December 1, 2022
    ...has rejected recent opportunities to constrain the doctrine. See, e.g., Petition for Writ of Certiorari at i, 10-17, State v. Asboth, 898 N.W.2d 541 (Wis. 2017) (No. 17-781), cert. denied, Asboth v. Wisconsin, 138 S. Ct. 1284 (2018) (posing the question presented as whether "standardized cr......

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