State v. Asboth, 2015AP2052–CR.

• Decision Date: 29 September 2016
• Docket Number: No. 2015AP2052–CR.,2015AP2052–CR.
• Citation: 888 N.W.2d 23 (Table),372 Wis.2d 185
• Parties: STATE of Wisconsin, Plaintiff–Respondent, v. Kenneth M. ASBOTH, Jr., Defendant–Appellant.
• Court: Wisconsin Court of Appeals

372 Wis.2d 185

888 N.W.2d 23 (Table)

STATE of Wisconsin, Plaintiff–Respondent,

v.Kenneth M. ASBOTH, Jr., Defendant–Appellant.

No. 2015AP2052–CR.

Court of Appeals of Wisconsin.

Sept. 29, 2016.

¶ 1 BLANCHARD, J.

Kenneth Asboth appeals a judgment of conviction for armed robbery, challenging the circuit court's denial of his motion to suppress evidence. Police lawfully took Asboth into custody at a private storage unit facility, then had a car associated with Asboth towed to a police facility, where police conducted an inventory search of the car. The inventory search revealed evidence that Asboth seeks to suppress, but no aspect of the inventory search itself is at issue in this appeal. Instead, Asboth argues exclusively that police violated the Fourth Amendment in initially seizing the car. The seizure was unconstitutional, Asboth contends, for two reasons: it was not conducted pursuant to a law enforcement vehicle seizure policy with standardized, sufficiently detailed criteria, and it was not justified as an exception to the Fourth Amendment warrant requirement under the bona fide community caretaker doctrine. We disagree and accordingly affirm.

BACKGROUND

¶ 2 Following evidentiary hearings, the circuit court made findings of fact that include the following, none of which are disputed by either party on appeal.

¶ 3 A Dodge County Sheriff's Department deputy lawfully arrested Asboth on a probation warrant while he was by himself at a private facility that maintains storage units. At the time of his arrest, Asboth was a suspect in a recent armed robbery in Beaver Dam.

¶ 4 Shortly before the arrest, police observed Asboth reaching into a car parked at the storage facility. The officers involved in the arrest learned that the car was registered to a person with a Madison address. At the time of the arrest, the car blocked access to multiple storage units and impeded potential vehicle travel through at least one area of the facility.

¶ 5 The storage facility was located within the jurisdiction of the Dodge County Sheriff's Department and outside the jurisdiction of the Beaver Dam Police Department. The sheriff's deputy who arrested Asboth made a mutual aid request to city police for assistance in connection with Asboth's arrest, apparently because the deputy thought that he needed immediate backup not available from his own department. Because the sheriff's department lacked storage space to hold the car, the car was towed to a city police impound lot, as opposed to a sheriff's department facility. The car was held at the police department lot and subsequently searched.¹ During the course of the inventory search, police removed and held for safekeeping all items of apparent value, whether or not the items appeared to be related to the armed robbery .²

¶ 6 Asboth moved to suppress evidence obtained in the search, alleging, as pertinent to this appeal, that the initial seizure of the car violated the Fourth Amendment. The circuit court denied Asboth's motion to suppress and his subsequent motion for reconsideration. As pertinent to this appeal, the court concluded that the State carried its burden of showing that the warrantless seizure of the car did not violate the Fourth Amendment. We supply additional facts as necessary to discussion below.

DISCUSSION

¶ 7 This court reviews the denial of a motion to suppress under a two-part standard of review. State v. Popp, 2014 WI App 100, ¶ 13, 357 Wis.2d 696, 855 N.W.2d 471. We uphold a circuit court's findings of fact unless they are clearly erroneous, but determine whether those facts warrant suppression under a de novo review. Id.

¶ 8 As noted above, Asboth exclusively challenges the seizure of the car as a Fourth Amendment violation. On this ground, Asboth argues that evidence obtained during the inventory search must be suppressed. More specifically, Asboth argues that seizure of the car was unreasonable under the Fourth Amendment for two reasons: (1) it was not conducted pursuant to a law enforcement policy setting forth standardized, sufficiently detailed guidelines limiting officer discretion in seizing vehicles; and (2) even if conducted pursuant to a standardized, sufficiently detailed policy, the seizure was not justified as an exception to the Fourth Amendment warrant requirement under the bona fide community caretaker doctrine .³

¶ 9 Before discussing Asboth's arguments in turn, we summarize basic legal principles in this area. Police do not violate the Fourth Amendment if they seize a vehicle pursuant to the community caretaker doctrine, that is, if the seizure is consistent with the role of police as "caretakers" of the streets. See South Dakota v. Opperman, 428 U.S. 364, 370, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976) ; State v. Clark, 2003 WI App 121, ¶ 20, 265 Wis.2d 557, 666 N.W.2d 112. More specifically, Opperman describes common situations in which police may reasonably seize vehicles in the role of community caretakers, consistent with the commands of the Fourth Amendment:

In the interests of public safety and as part of what the Court has called "community caretaking functions," automobiles are frequently taken into police custody. Vehicle accidents present one such occasion. To permit the uninterrupted flow of traffic and in some circumstances to preserve evidence, disabled or damaged vehicles will often be removed from the highways or streets at the behest of police engaged solely in caretaking and traffic-control activities. Police will also frequently remove and impound automobiles which violate parking ordinances and which thereby jeopardize both the public safety and the efficient movement of vehicular traffic. The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge.

Opperman, 428 U.S. at 368–69 (emphasis added) (footnote and quoted source omitted). This approach derives in part from the traditional "distinction between automobiles and homes or offices in relation to the Fourth Amendment." Id. at 367. While automobiles are protected by the Fourth Amendment, "warrantless examinations of automobiles have been upheld in circumstances in which a search of a home or office would not." Id. (citing authority that includes the seminal community caretaking case, Cady v. Dombrowski, 413 U.S. 433, 442, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), which discusses the "ambulatory character" of vehicles).

¶ 10 These concepts were later refined in Colorado v. Bertine, 479 U.S. 367, 375–76, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). In Bertine, the Court concluded that seizure and an inventory search of Bertine's van, after he was arrested and taken into custody, qualified as community caretaking activity because police followed "standardized procedures" and because there was no showing that police "acted in bad faith" or "for the sole purpose of investigation." Bertine, 479 U.S. at 367, 372.

¶ 11 While on the subject of Bertine, we now briefly introduce a topic that we will discuss more fully below, namely, a potential complication regarding application of the community caretaker doctrine in the context of vehicle seizures. There is no dispute under U.S. Supreme Court and Wisconsin appellate court precedent that police act unreasonably in seizing a vehicle without a recognized Fourth Amendment justification, such as community caretaking activity. However, the federal circuit courts of appeal are in conflict as to whether Bertine establishes a specific requirement that police must follow a standardized policy in seizing a vehicle when acting as community caretakers, and as discussed below Wisconsin appellate precedent does not appear to impose such a requirement. That is, Bertine can be read, but is not universally read, to describe a requirement that police exercise their discretion "in light of standardized criteria" set forth in a police policy. Bertine, 479 U.S. at 375–76.⁴ We need not resolve whether Bertine imposes a standardized criteria requirement. Rather, as explained further below, we will assume without deciding that there is a requirement that police must follow standardized criteria. Acting on this assumption, we first address whether the car was seized pursuant to a standardized policy and later turn to other aspects of the community caretaker doctrine.

1. Vehicle Seizure Pursuant to a Police Policy

¶ 12 Operating from the position that police had to follow a standardized policy in seizing the car here, Asboth makes arguments related to the specific policies of the sheriff's department (the "county's policy") and the police department (the "city's policy") related to vehicle seizures. Asboth argues that the specific law enforcement policy that was applied in seizing the car was the city's policy, not the county's policy. He further argues that, whichever policy applied here, neither the county's policy nor the city's policy contained standardized criteria that provided sufficient guidance to justify seizure under the community caretaker doctrine. Some additional factual background regarding the policies themselves is necessary before we return to these specific arguments and pertinent legal standards.

¶ 13 The county's policy authorized deputies to seize vehicles in various scenarios. As pertinent here, this included the following scenario: (1) the driver of a vehicle is taken into police custody; and (2) as a result, that vehicle would be left unattended. The city's policy articulated a different standard on this topic. However, for reasons we now explain, the content of the city's policy does not matter to any issue raised on appeal, because we conclude that the seizure was conducted pursuant to the county's policy.

¶ 14 In support of his argument that law enforcement followed the city's policy, rather than the county's policy, Asboth points to the undisputed facts that the car was towed to the city police department and that city officers conducted the inventory search. Based on ...