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Community Caretaker – Automobile Towed for Safekeeping

State v. Timothy T. Clark, 2003 WI App 121
For Clark: Rodney Cubbie

Issue/Holding: Police tow of an automobile for “safekeeping,” even though “none of the typical public safety concerns illustrated by Opperman are at issue,” but rather on the ground that the vehicle was unlocked and therefore potentially at risk of theft, was unreasonable because effective alternatives to police seizure were available:

¶21. A three-step test is used to evaluate the reasonableness of such a seizure: “(1) that a seizure within the meaning of the fourth amendment has occurred; (2) if so, whether the police conduct was bona fide community caretaker activity; and (3) if so, whether the public need and interest outweigh the intrusion upon the privacy of the individual.” State v. Anderson, 142 Wis. 2d 162, 169, 417 N.W.2d 411 (Ct. App. 1987). With respect to the second step, a bona fide community caretaker activity is one that is divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute. See State v. Dull, 211 Wis. 2d 652, 658, 565 N.W.2d 575 (Ct. App. 1997). The third step requires us to consider four additional 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.

Anderson, 142 Wis. 2d at 169-70 (footnotes omitted). “Overriding this entire process is the fundamental consideration that any warrantless intrusion must be as limited as is reasonably possible, consistent with the purpose justifying it in the first instance.” Id. at 169.

¶27. Because Detective McKee neither: (1) locked the vehicle and walked away; nor (2) attempted to contact the owners of the vehicle in light of his belief that the vehicle or its contents may be stolen, we conclude that, absent these safeguards, the public need in towing the unlocked vehicle did not outweigh the intrusion upon Clark’s privacy. Furthermore, although an automobile was involved and individuals generally have a lesser expectation of privacy in an automobile, see Anderson, 142 Wis. 2d at 169 n.4, we conclude that Clark’s reasonable expectation of privacy included the expectation that he could leave his vehicle parked legally on the street, albeit unlocked, without it being towed. Accordingly, the circuit court erroneously denied Clark’s suppression motion.

See also Taylor v. State, Ind SC No. 49S04-0410-CR-457, 2/14/06 (simply because car parked illegally doesn’t justify impoundment; must be showing that “vehicle posed some threat or harm to the community or was itself imperiled was consistent with objective standards of sound policing”); Miranda v. City of Cornelius, 9th Cir No. 04-35940, 11/17/05 (impoundment of car from owner’s driveway, after officer observed unlicensed driver learning how to drive “was an unreasonable seizure not justified by the community caretaking doctrine because the police have no duty to protect a vehicle parked on the owners’ property and there was no reason to believe that impoundment would prevent any threat to public safety from its unlawful operation beyond the brief period during which the car was impounded”).

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