Last term, ASPD Andy Hinkel argued an important community caretaker issue that has divided state and federal courts to the Wisconsin Supreme Court. See State v. Asboth, 2015AP2051-CR. The State prevailed but perhaps only temporarily. Today the defense gained traction when SCOTUSblog featured Asboth’s petition for writ of certiorari as its Petition of the Day. Note that Asboth now has four sets of lawyers, including the SPD. Good luck, Team Asboth!!! Here is the question presented:
The “community caretaking” exception to the Fourth Amendment’s warrant requirement permits warrantless searches and seizures only where they are “totally divorced from the detection, investigation, or acquisition of evidence.” Cady v. Dombrowski, 413 U.S. 433, 441 (1973). More particularly, this Court has authorized limited police discretion to seize vehicles without warrants for community caretaking purposes “so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity.” Colorado v. Bertine, 479 U.S. 367, 375 (1987). At least seven federal circuit courts and eight state high courts have applied Bertine to require standardized criteria that limit an officer’s discretion to seize a vehicle without a warrant after its operator is taken into custody. Conversely, three federal circuit courts and three state high courts (including the court below, in acknowledged conflict with the majority view) have held that Bertine does not require standardized criteria.
The question presented is: Whether standardized criteria must guide police discretion to seize a vehicle without a warrant or probable cause after its operator has been taken into police custody.
