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State v. Kenneth M. Asboth, 2015AP2052-CR, petition granted 1/9/2017

Review of an unpublished court of appeals decision; affirmed 2017 WI 76case activity (including briefs)

Issues (from petition for review):

Law enforcement officers arrested Kenneth Asboth at a private storage facility. The car he had been driving was parked in the lane between rows of storage units, in front Mr. Asboth’s leased unit. The officers seized the car, towed it to a police station, and searched it.

  1.  Must a community-caretaker impoundment of a vehicle be governed by “standard criteria” limiting the discretion of law enforcement officers and, if so, was the impoundment here made in accord with such criteria?
  2. Was the impoundment here a valid community caretaker action where the vehicle was parked at a private storage facility? Relatedly, does the Constitution require the state to show that a community caretaker impoundment and search is not a pretext concealing criminal investigatory motives?

The case law around vehicle impoundments (and the inventory searches that more or less automatically flow from them) is surprisingly undeveloped. SCOTUS has spoken a few times, chiefly in South Dakota v. Opperman, 428 U.S. 364 (1976), and Colorado v. Bertine, 479 U.S. 367 (1987), each time blessing the search at issue but leaving unclear what, if any, limits confine a law enforcement officer’s discretion to seize the vehicle of an arrestee.

Relevant to this appeal, state and federal courts have taken various positions on whether a law enforcement agency must have “standard criteria” governing impoundments, and if they must, what legal effect compliance with such criteria has: whether it is a bare minimum for constitutionality, or instead more or less immunizes the seizure from further scrutiny, or is merely one factor to consider in the general reasonableness inquiry. Wisconsin’s stand on this question is unclear; both parties in this litigation cite the same case, State v. Clark, 2003 WI App 121, 265 Wis. 2d 557, 666 N.W.2d 112, to support their opposing views of the law. The involvement of two different police forces, with two different policies, complicates matters here as well.

The second question presented concerns whether there was a valid community caretaker basis to seize Mr. Asboth’s car. There is some suggestion in SCOTUS case law that an impoundment and inventory may not be used as a pretext for criminal investigation. Asboth argues that there was no real need to tow his car, and that the police officers’ investigation of his alleged bank robbery was the real motivation for the seizure.

Given the murkiness of existing law, the court has a real opportunity here to clarify things for law enforcement and the bench and bar. Let us hope they seize it.

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