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SCOW: “Standard criteria” not required for vehicle impound

State v. Kenneth M. Asboth, Jr., 2017 WI 76, 7/6/2017, affirming an unpublished court of appeals decision; case activity (including briefs)

This case presented an issue that has divided federal and state appellate courts: does Colorado v. Bertine, 479 U.S. 367 (1987), permit “community caretaker”-type vehicle impoundments only when the police act accord to “standard criteria”? The majority in this case joins the “no” camp; the dissent says the majority has “buck[ed] the nationwide trend” and expanded the community caretaker doctrine into a “pretext to engage in unconstitutional searches” for evidence of crime.

Police suspected Kenneth Asboth in a bank robbery. They received a tip that he would be at a storage facility, and converged there, where they arrested him. They also decided to seize the car he had been driving, which was parked in the lane between storage sheds. Once the car was at the police station, officers searched it, finding evidence linking Asboth to the robbery. The trial court and court of appeals both denied suppression, holding that the car was validly impounded, and that an inventory search was thus permitted.

Asboth maked two arguments in the court of appeals and again in the supreme court: that the law enforcement agency that seized his car did not do so pursuant to “standardized criteria” contrary to Colorado v. Bertine, 479 U.S. 367 (1987); and that even if they had, the seizure was not a valid exercise of the community caretaking power.

The first, “standardized criteria” question was the juicier one. SCOTUS has had very, very little to say about impoundments generally, and the federal circuits have come down all over the place on whether, per Bertine, standard criteria are an absolute requirement, one factor to consider, or a nonissue. The majority here simply adopts the view of the First, Third and Fifth Circuits:

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. 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.

The second issue, while facially a somewhat fact-specific application of the well-worn three-prong community caretaker test, had an interesting wrinkle which the majority glosses over. As to the test, the majority sees a great public need to remediate the partial obstruction of a lane between storage units at a private facility. (¶18). Beside that, Asboth had argued that certain SCOTUS cases require that impoundments not be a pretext for criminal investigation (contrary to the usual rule that an officer’s subjective motivations are irrelevant). The majority simply states the usual rule and ignores Asboth’s argument about an exception.

Justice A.W. Bradley dissents. She argues that the “standard criteria” requirement is the better rule, and has become the majority rule in order to impose a needed limit on police discretion.  She closes with a warning that the court has repeatedly expanded the community caretaker exception, such that “today’s close call [is] tomorrow’s norm.” (¶79). She goes on:

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.

(¶81).

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