State v. Kenneth M. Asboth, Jr., 2015AP2052-CR, 9/29/16, District 4 (not recommended for publication); petition for review granted 1/9/17; affirmed 2017 WI 76; case activity (including briefs)
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 denied suppression, holding that the car was validly impounded, and that an inventory search was thus permitted.
Asboth makes two arguments on appeal: 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 court of appeals disagrees on both points.
The court first notes a disagreement among various jurisdictions as to whether Bertine requires “standardized criteria” for a valid impoundment, and cites a Wisconsin case, State v. Clark, 2003 WI App 121, 265 Wis. 2d 557, 666 N.W.2d 112, that can be read to imply the absence of such a requirement. (¶16). It declines to decide the question, however, instead concluding that if there is such a requirement, it was met here.
Asboth argues that reliance on the county’s policy would not have been reasonable, because the policy was not “sufficiently standardized,” as Asboth submits is required by Bertine, in that it provided “no ‘conditions circumscrib[ing] the discretion of individual officers.’” In particular, Asboth notes that, under the county’s policy, deputies were permitted to tow a vehicle when the driver had been arrested and as a result the vehicle would be left unattended at least for a time, while at the same time the policy separately provided that “unless otherwise indicated” deputies “always [had] discretion to leave the vehicle at the scene and advise the owner to make proper arrangements for removal.” However, as quoted above, Bertine suggests that a policy may give police broad discretion, explaining that “[n]othing … prohibits the exercise of police discretion,” as long as it is exercised according to some set of standardized criteria and is not exercised solely for an investigative purpose. Bertine, 479 U.S. at 375. Put differently, Asboth fails to persuade us that the county’s policy was so vague or loose that it could not be considered a standardized policy under Bertine.
(¶18).
Turning to the community caretaker doctrine, the court first rejects Asboth’s argument that, while an officer’s “subjective law enforcement concerns” do not generally invalidate a community caretaker action, federal Supreme Court precedent forbids pretextual impoundments. See South Dakota v. Opperman, 428 U.S. 364, 376 (1976); Whren v. United States, 517 U.S. 806, 811-12 (1996). (¶¶26-29).
The court also rejects Asboth’s argument, based on Clark, that the community caretaker doctrine does not permit seizure of a vehicle where there are other more reasonable alternatives to impoundment. (¶¶36-43).
