Defense win! SCOW unanimously holds towing and search of car not valid community caretaker action

State v. Alfonso Lorenzo Brooks, 2020 WI 60, 6/25/20, reversing a per curiam court of appeals decision, 2018AP1774, case activity (including briefs)

The police stopped Brooks for speeding in Milwaukee. Specifically, they pulled him over to the side of a residential/commercial road. The police quickly learned Brooks had a suspended license and was a convicted felon. They wrote him tickets for the speeding and operating on a suspended license. Brooks wasn’t arrested then, but he couldn’t drive away either, on account of the license issue. So, police told him, they were towing his car to impound–even though he told them his girlfriend (to whom the car was registered) was nearby and could pick it up. The police said no, that was against department policy, and then did an inventory search of the car. That search turned up a gun, which Brooks, as a felon, could not have. Then he was arrested.

Brooks moved to suppress the gun, lost, pleaded guilty, and appealed. He raises the same claim in the supreme court that he raised in the circuit court and the court of appeals: that on the facts developed at the suppression hearing, the inventory search was not a valid community-caretaker action. (He also asserted his trial counsel was ineffective for not developing additional facts that would have helped him with this claim; happily the court holds that he wins regardless, so it doesn’t address the IAC issues.)

Though it’s the search of the car that revealed the gun, it’s the decision to impound it that’s at issue here: if that wasn’t valid, then the search that relied on it also fails. (¶24). The court notes its usual test for the validity of a community-caretaker search:

(1) whether a search or seizure within the meaning of the Fourth Amendment has occurred; (2) if so, whether the police were exercising a bona fide community caretaker function; and (3) if so, whether the public interest outweighs the intrusion upon the privacy of the individual such that the community caretaker function was reasonably exercised[.]

(¶12 (citing State v. Asboth, 2017 WI 76, ¶13, 376 Wis. 2d 644, 898 N.W.2d 541)).

All the action in this case is in step 2. The heart of the analysis consists of the court’s rejection of the state’s analogies between the facts here and those in Asboth. In particular, while Asboth, who was a suspect in a robbery, was arrested before his car was towed and searched, Brooks’s arrest came after the search. This matters because at the time officers decided to search, Brooks could easily have arranged for his car to be picked up. This negates the state’s professed concern that the car could be stolen or vandalized. (Or, as the court says, “[e]very vehicle parked in public is theoretically at risk of theft or vandalism. But that does not mean impounding any such vehicle is a bona fide act of community caretaking.) The fact that there was no arrest at the time of the search also means that, in deciding to impound, police had little reason to think the registered owner of the car might not be able to find or retrieve it. (¶¶17-20).

The other key distinction is that Asboth’s car was parked in an awkward spot at a private storage facility, where it might have inconvenienced the property owner or blocked traffic. Here we get into some issues about the state of the record. Brooks says his car was in a legal roadside parking spot; the state argues it was actually too far from the curb, such that it impeded the road. The circuit court made no finding either way, though Brooks has always claimed the car was legally parked. The court  notes that the burden to demonstrate a valid warrant requirement is on the state, and so the “gap in the record is a problem for the State, not Mr. Brooks.” (¶20).

The court finally rejects the state’s argument that the asserted police policy–to impound any vehicle without a licensed driver on scene–independently justified the impound:

Although this part of the State’s argument is not entirely clear, it appears to suggest that compliance with the Department’s standardized policy means, ipso facto, that the deputies were acting as community caretakers. But compliance with an internal policy has nothing to do with whether they were acting in that role when they impounded the car. A standardized policy may provide some evidence that the police performed their community caretaker role reasonably, but it cannot establish the predicate——that they were acting as community caretakers. As we observed in State v. Guy, 172 Wis. 2d 86, 100, 492 N.W.2d 311 (1992), law enforcement policies cannot substitute for a case-by-case application of constitutional requirements to the facts at hand.

(¶21).